After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all racesmarching, screaming, and demonstrating against police brutality and for racial justice.Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of Minneapolis, Dallas, Oakland, Seattle, Portland, Denver, Chicago, Los Angeles, and Indianapolis, claiming extreme violence and unlawful and abusive use of less lethal weapons by police during protests. The first Part of this Article provides a recent history of this police brutality against racial justice activists in the George Floyd protests. The second Part of this Article reviews circuit court opinions in protest cases from the last three decades and district court injunctions from the George Floyd protest litigation to analyze how courts currently evaluate, in section 1983 Actions, the Fourth Amendment reasonableness of police force pursuant to Graham v. Connor. This Part demonstrates that in their Fourth Amendment reasonableness calculus, courts discount plaintiffs’ involvement in valuable politically expressive conduct. The third Part of this Article argues that the Fourth Amendment mandates courts evaluate the reasonableness of protest policing in light of freedom of expression which means they must positively weigh plaintiffs’ expressive protest activity. This reframing of reasonableness is supported by historical evidence of the Framers’ intent and Supreme Court jurisprudence on searches of books, papers, and other expressive materials when such items arguably deserve First Amendment protection. The fourth Part of this Article discusses the difference an expression-specific Fourth Amendment—the expressive Fourth Amendment—reasonableness test would have made in one of the circuit protest cases.
Article | Anti-discrimination Law
The Modern American Law of Race
by David E. Bernstein*
From Vol. 94, No. 2
94 S. Cal. L. Rev. 171 (2021)
Keywords: Anti-discrimination Law, Public Policy
Most Americans believe that a person’s ethnic or racial identity is currently a matter of self-identification in the United States, but that is not entirely true. Government agencies and courts have established rules for what makes someone African American, Asian, Hispanic, Native American, or white, and for how one proves that one meets the relevant criteria.1 One can get a sense of the scope of these rules by considering how authorities would resolve some recent public controversies over individuals’ racial and ethnic identities.
For example, is golf star Tiger Woods, who calls himself “Cablinasian,” legally classified as Asian based on his predominant ethnic origin,2 African American based on his appearance and the principle of hypo-descent,3 or something else? Until 2019, in Washington State, a government employee would have determined Woods’ ethnic status by looking at his picture.4 Under federal law, Woods could claim Asian American or African American status based on his partial Asian and African ancestry, but he would need to affirm that he holds himself out as a member of the group.5 Whether identifying as “Cablinasian” counts as holding oneself out as Black or Asian is not clear. To successfully claim Native American status based on his Native American great-grandparent, Woods would generally need to show membership in a federally recognized tribe.6 There is, of course, no official Cablinasian category, nor could Woods claim a Thai or Chinese identity separate from the general Asian category.
Is George Zimmerman, charged with murder—and ultimately acquitted by a jury—in the controversial shooting of Trayvon Martin, best described as Hispanic, half-Hispanic, mixed-race, white Hispanic, or something else?7 With a Peruvian mother, assuming he self-identifies as Hispanic, Zimmerman likely qualifies as Hispanic under every extant relevant federal and state law, unless, perhaps, his mother’s ancestors immigrated to Peru from a non-Spanish-speaking country.8 Some government agencies might also question Zimmerman’s Hispanic-ness based on his German-sounding last name and his (arguably) white appearance;9 some agencies would require him to present affirmative evidence that he considers himself, and is considered by others, to be Hispanic.10
Whether Zimmerman could successfully claim African American status based on his mother’s purported partial African ancestry is less clear.11 Federal law suggests that any amount of African ancestry is sufficient to qualify someone as African American,12 but there is recent judicial precedent to the contrary.13 Some states rely on the National Minority Supplier Development Council (“NMSDC”) for racial and ethnic classification, and the NMSDC requires that a person be one-quarter African American to claim that status.14 Federal agencies would likely accept Zimmerman’s claim of African American status based on an affidavit from him, though he would have to affirm that he holds himself out as African American.15 The NMSDC would demand documentation, such as a driver’s license or birth certificate, listing Zimmerman’s race as African American.16 California, meanwhile, would require birth certificates specifying race from either Zimmerman, his parents, or his grandparents, or three letters from certified ethnic organizations attesting to Zimmerman’s group membership.17 There is no official mixed-race status to claim in any jurisdiction, though the Department of Education now has a category in its statistics for children whose parents say the children belong in two or more racial categories.
Was former NAACP official Rachel Dolezal, the offspring of two parents of European origin, pretending to be Black by identifying as an African American woman? Or was it acceptable for her to adopt an African American identity, given that race is a socially constructed concept and she sincerely adopted an African American identity?18 Under federal and the vast majority of state laws, Dolezal’s lack of African ancestry means that she would be classified as white.19 In Massachusetts, however, the fact that she held herself out as a Black woman and others treated her as such would allow her to classify herself as Black in some contexts.20
Was Senator Elizabeth Warren justified in identifying herself as Native American based on family lore that she has Native American ancestry,21 or was she engaging in “ethnic fraud”?22 Under federal law, Warren’s lack of membership in a recognized tribe means that she is not Native American for most purposes.23 Warren also likely does not come within the definition of “Indian” in statutes that don’t require tribal membership.24 For statistical purposes, including for enforcement of antidiscrimination legislation, the government includes individuals with Native American ancestry who “maintain cultural identification through . . . community recognition.”25 In some states, family lore plus self-identification is likely enough for the government to recognize someone as Native American.26
Some of Vice President Kamala Harris’s political opponents have questioned her Black identity. 27 Harris, the child of an Indian immigrant mother and a father of mixed-race heritage from Jamaica, has identified as Black her entire adult life (including attending a historically Black university, Howard University), is identified by others as such, and has African ancestry.28 Given those facts, legal authorities throughout the United States would recognize her as Black and/or African American.
The controversies discussed above were debated in the court of public opinion; no courts or regulatory bodies were asked to rule on the ethnic or racial identity of any of these individuals. Most Americans undoubtedly prefer it that way, understandably tending to blanch at the idea of having the government, at any level, dictate the boundaries of ethnic identity.29 Such determinations are reminiscent not only of Nazi Germany’s and South Africa’s racial obsessions,30 but of America’s sordid past.31 Not long ago, Southern states divided mixed-race individuals into categories such as “octoroons” and “quadroons” to determine whether they were “white” or “colored” by law.32 The U.S. government, meanwhile, engaged in pseudoscience and pseudo-anthropology to determine which people from Asia counted as “Asians” and were thus not legally eligible to immigrate to the United States or become naturalized citizens, and which people from Asia were sufficiently “white” or “Caucasian” to be classified as such.33
Despite Americans’ understandable modern squeamishness at official racial categorization, racial and ethnic classifications are ubiquitous in American life. Applying for a job, a mortgage, university admission, citizenship, government contracts, and much more involves checking a box stating whether one is white, Hispanic, Asian, African American, or Native American, among other extant classifications. 34
Those seeking information about individuals’ ethnicity typically rely on self-identification and voluntary compliance with general norms regarding such identification.35 As noted, however, legal rules dictate whether someone may claim “minority” status in some contexts. This should not be surprising, given that concrete benefits sometimes accompany one’s identification as a member of a racial or ethnic minority group. In the past, given Jim Crow laws, immigration and naturalization restrictions, and other forms of de jure and de facto race discrimination, it was generally considered beneficial to claim a white identity. Today, while invidious discrimination still presents impediments to minorities, claiming a non-white identity can make one eligible for affirmative action preferences.36 While university affirmative action policies receive far more public attention, there is a strong incentive to claim minority status to be eligible for racial and ethnic preferences that influence the award of hundreds of billions of dollars annually in government contracts.37
This Article addresses two distinct but related issues. This Article first discusses the categories that federal and state governments use to define the “official” racial and ethnic minorities in the United States for data gathering, civil rights enforcement, and affirmative action purposes; the boundaries of those categories; and how those categories came to be. The second issue addressed by this Article is what evidence individuals must provide to demonstrate membership in these categories, and how modern courts and agencies have adjudicated questions of racial or ethnic identity when an individual’s claim to minority status has been contested.
Most Americans take the categories of “African American,” “Native American,” “Asian American,” and “Hispanic” for granted.38 Yet there is no inherent logic to using these categories, nor to their precise scope,39 and the same, for that matter, is true of the category “[w]hite.”40 As a federal judge has pointed out, the categories are not consistent with one another: “one group [African Americans] is defined by race, another [Hispanics] by culture, another [Asians] by country of origin and another [Native Americans] by blood.”41
The Hispanic category generally includes everyone from Spanish immigrants (including people whose first language is Basque or Catalan, but not Spanish) to Cuban Americans of mixed European extraction to Puerto Ricans of mixed African, European, and indigenous heritage to individuals fully descended from indigenous Mexicans.42 Members of the disparate groups that fall into the “Hispanic” or “Latino” category often self-identify as white,43 often feel more connected to the general white population than to other Spanish-language national-origin groups, and sometimes diverge from members of other Hispanic demographic groups in political outlook as much or more than from the general white population.44 Moreover, “census data show substantial differences in levels of income and educational attainment among the national origin groups in which data about ‘Hispanics’ are usually classified.”45 Not all Hispanics, meanwhile, consider themselves to be part of a minority group, and “some who claim minority status for themselves would reject [that status] for . . . others” (for example, they might “reject it for well-educated professionals who immigrate from South American countries” and who are considered white in their home countries).46 People of Portuguese or Brazilian ancestry, who are not of Spanish culture or origin, are nevertheless sometimes defined as Hispanic by legislative or administrative fiat.
The Asian American category includes people descended from wildly disparate national groups,47 who have dissimilar physical features, practice different religions,48 speak different languages, vary dramatically in culture,49 and sometimes have long histories of conflict with one another.50 Various subgroups of Asian Americans have differing levels of average socioeconomic success in the United States51—Indian Americans, for example, on average have significantly higher-than-average incomes and levels of education, while on average the incomes of Hmong and Burmese Americans are well-below the American mean.52 Korean Americans have the highest rate of business formation for any ethnic group in the United States, while Laotians have the lowest.53 The Asian category meanwhile excludes people from the Western part of Asia, such as Muslim Americans of Yemeni origin, who may face discrimination based on skin color (often dark), religion, and Arab ethnicity.54 Only a minority of people in the Asian category identify with the “Asian” or “Asian American” labels.55
Under most federal rules,56 the Native American category includes someone of remote Indian ancestry who has inherited tribal membership, while excluding some people with much closer genetic and cultural connections to the Native American community who are not tribal members.57 The question of whether the category of African American should sometimes be limited to descendants of American slaves or include African and Caribbean immigrants and their descendants is increasingly debated, as is the question of whether multi-racial individuals with a non- Black-identified parent should be included in the African American category.58
Classification rules generally were not made by Congress or state legislatures, where they would have been subject to public discussion and debate, but by administrative agencies. These agencies have used their authority to determine which groups are covered by classification rules, as well as how to prove membership in those groups. The modern history of racial and ethnic categorization by the government is therefore an example of, among other things, administrative constitutionalism,59 with the bureaucracy creating important baseline rules for society with little input from elected officials and negligible public debate.
Part I of this Article addresses the origins and development of modern racial categorizations in the United States. These categories arose from categories used for federal antidiscrimination enforcement and affirmative action policies. The federal government has never provided a coherent or comprehensive explanation for why some minorities are deemed to be “official” minority groups and others are not, or for why the various categories have the precise, and often seemingly arbitrary, boundaries that they do.
As documented in Part I of this Article, the scope and contours of official minority status have arisen from a combination of groups being deemed analogous to African Americans in facing race discrimination; bureaucratic inertia; lobbying campaigns; political calculations by government officials; a failure to anticipate future immigration patterns; and happenstance. It was far from inevitable, for example, that Americans with ancestry in the Indian subcontinent or the Iberian peninsula would gain official minority status, but that Arab, Greek, Iranian, Italian, Jewish, and Polish Americans would not.
Part II discusses state variations on the scope of the standard ethnic categories, in particular in the states’ Minority Business Enterprise (“MBE”) programs. Federal law requires states that accept federal transportation funds—that is, all states—to have rules for certifying firms owned by members of designated minority groups as MBEs. MBEs are eligible for presumptive status as Disadvantaged Business Enterprises (“DBEs”) for federally funded contracts. States are permitted to use federal standards for this purpose, but may also create and enforce their own standards, both for participation in federally funded projects and for state purposes. Various states’ rules diverge from federal law in determining who is deemed African American, Asian, Hispanic, or Native American. For example, unlike under federal law, some states exclude persons with Portuguese and Spanish ancestry from the Hispanic category. Other states delegate authority to the
NMSDC to use its own idiosyncratic standards to certify minority status.
This Article next turns to the question of what evidence individuals must provide to demonstrate membership in these categories. Conventional wisdom is that these categories are a matter of self-definition based on informal norms. For federal purposes, this is largely true. Most federal programs require only a signed affidavit attesting that the petitioner for minority status is a member of the claimed group and holds himself or herself out as such.60
States, however, often require documentation before granting minority status. This documentation requirement can be met by providing an official document listing one’s race, providing letters of support from ethnic organizations, or relying on certification by the NMSDC. Part III of this Article discusses the evidence various states demand to support a claim that a petitioner is a member of a designated group.
Perhaps surprisingly, challenges to the under- or overinclusiveness of a governmental definition of the scope of particular racial or ethnic categories are rare. Part IV of this Article discusses the only four such cases this author found. In the first case, the Eleventh Circuit Court of Appeals held that, judged by the rational basis standard, a city’s Hispanic category was neither over- nor underinclusive for equal protection purposes.61 In the second case, the Second Circuit, also applying the rational basis test, held that it was not unconstitutionally arbitrary for New York State to exclude companies owned by people from Spain from its Hispanic MBE category, even though the federal government includes such companies.62 In the third case, the Seventh Circuit held that it was unconstitutionally overinclusive to include immigrants from Spain and Portugal and their descendants in the Hispanic category in Cook County, Illinois’ MBE Program.63 In the fourth case, the Sixth Circuit held that Ohio’s MBE law was both overinclusive in including groups that had not been victims of longstanding discrimination in Ohio, and underinclusive in not including groups that had been.64
Conventional wisdom is that there has been only one case in which an individual’s claim to minority status has been adjudicated in an affirmative action context. The case involved white firefighter brothers named Malone who claimed African American status based on dubious evidence that they had an African American great-grandmother.65 It turns out, however, that the Malone case is the tip of a (small) iceberg.
Part V of this Article reviews cases in which the minority status of a petitioner seeking MBE status for his or her company has been adjudicated. Most of the cases discussed in Part V involve the question of Hispanic status, the boundaries of which have proved especially vexing to administrators and courts. Part VI of this Article turns from racial categorization in the MBE context to adjudication of claims of minority status by individuals seeking to benefit from affirmative action in employment.66
Part VII of this Article notes the existence of laws governing racial identity that are beyond the scope of this Article, in particular laws defining whom the federal government classifies as being an “Indian.”
This Article concludes by noting that laws dictating ethnic and racial categories were designed primarily to assist African Americans overcome the legacy of slavery, Jim Crow, and discrimination. As the United States has become more demographically diverse, however, African Americans are now a shrinking minority of those officially classified as members of racial and ethnic minority groups.67 Given high rates of interracial marriage among other minority groups68 and the reality that mixed-race and mixed-ethnicity individuals can check whichever box most benefits them in a given circumstance, the percentage of non-African American individuals eligible for minority status for affirmative action purposes will continue to grow, putting increasing strains on the current method of categorization. The Conclusion suggests several ways to handle these strains.
*. University Professor, Antonin Scalia Law School, and Executive Director, Liberty & Law Center; B.A. 1988, Brandeis University; J.D. 1991, Yale Law School. For their comments, suggestions, and research leads, the author thanks Charles Barzun, Roger Clegg, Jonathan Bean, George La Noue, Peter Schuck, Michael Rosman, John Skrentny, and John Sullivan. The author benefited from feedback received at faculty workshops at the Antonin Scalia Law School and Northwestern University School of Law. Emily Yu provided excellent research assistance.
Article | Anti-Discrimination Law
by Alexander A. Boni-Saenz*
From Vol. 94, No. 2
94 S. Cal. L. Rev. 303 (2021)
Keywords: Anti-Discrimination Law, Diversity, Civil Rights Law, Public Policy
This Article is the first to examine age diversity in the legal literature, mapping out its descriptive, normative, and legal dimensions. Age diversity is a plural concept, as heterogeneity of age can take many forms in various human institutions. Likewise, the normative rationales for these assorted age diversities are rooted in distinct theoretical foundations, making the case for or against age diversity contextual rather than universal. A host of legal rules play a significant role in regulating age diversity, influencing the presence of different generations in the workplace, judiciary, and Congress. Better understanding the nature and consequences of age diversity allows us to recognize the unique set of costs and benefits it entails and enriches our understanding of other forms of difference. Further, examining the law with an age diversity lens highlights fruitful avenues for legal reform in fields as varied as immigration law, employment law, and the law of juries. In an era of increased intergenerational tension and a rapidly aging population, the time is ripe to evaluate age diversity and the law’s role in shaping it.
* Associate Professor of Law, Chicago-Kent College of Law. firstname.lastname@example.org. For helpful questions and comments, I would like to thank Lori Andrews, Susan Appleton, Kathy Baker, Felice Batlan, Naomi Cahn, Sungjoon Cho, Adrienne Davis, Graeme Dinwoodie, Danielle D’Onfro, Dan Epps, John Inazu, Andrew Ingram, Peter Joy, Pauline Kim, Hal Krent, Michelle Layser, Ron Levin, Marty Malin, Nancy Marder, Nancy Morrow-Howell, Greg Reilly, César Rosado, Mark Rosen, Rachel Sachs, Chris Schmidt, Carolyn Shapiro, Peggie Smith, Noah Smith-Drelich, Brian Tamanaha, Karen Tokarz, Andrew Tuch, Deb Widiss, the editors at Southern California Law Review, and workshop participants at the American Association of Law Schools Annual Meeting, Chicago-Kent, the Chicagoland Junior Scholars Conference, and Washington University in St. Louis, where I presented earlier versions of this Article. For valuable research assistance, I would like to thank Jessica Arencibia.
When a student misbehaves, race plays a role in how harshly the student is disciplined. Given the long history of racial discrimination in the United States, as well as prevalent implicit biases, Black and Latino students are disciplined at higher rates with stiffer punishments than their white peers. This higher level of discipline leads to a downward spiral of poor school performance and attendance, involvement in illegal activity, and arrest and imprisonment. Ultimately, Black and Latino students fall victim to a school-to-prison pipeline that many white students are not pushed into despite similar misbehavior. In order to protect students from the pipeline, equalize educational opportunities, and create a safe and welcoming school environment, it is necessary for the federal government to invalidate disciplinary policies that cause an unjustified, disparate impact.
Under President Obama, a first-ever policy guidance on student discipline was issued, which stated that not only are intentionally discriminatory policies unlawful per Title VI of the Civil Rights Act of 1964, but so too are facially neutral policies that cause an unjustified disparate impact. The Trump Administration rolled back the policy guidance, citing that a disparate impact policy is not a Title VI violation per current precedent and that invalidating disparate impact disciplinary policies makes schools less safe and more prone to shootings. This Note will examine those arguments and will conclude that the disparate impact standard is supported by current precedent, does not increase the rate of school shootings, and ultimately should be reinstated. The disparate impact standard is a necessary safeguard against negative, implicit attitudes and is an important step in eradicating the school-to-prison pipeline.
A. Legal Background
Title VI of the Civil Rights Act of 1964 establishes that no person on the basis of race, color, or national origin, shall be excluded, denied benefits, or subjected to discrimination under any federally assisted program. Thus, public schools may not discriminatorily discipline students. The purpose of Title VI is “that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes or results in racial discrimination.” The Department of Education (“DOE”) and the Department of Justice (“DOJ”) are responsible for enforcing Title VI and implementing its regulations. To ensure that a public school complies with Title VI, the DOJ and DOE may initiate investigations based on complaints of racial discrimination.
In order to prove unlawful discrimination under Title VI, either a government actor must have acted with a discriminatory intent or the action must have created a disparate impact. Discriminatory intent under Title VI is analyzed in the same way as intentional discrimination under the Equal Protection Clause of the Fourteenth Amendment. Intentional discrimination occurs when an action is adopted “at least partially because the action would benefit or burden an identifiable group.” However, “bad faith, ill will, or any evil motive” is not necessary to show intentional discrimination. Regardless of the reasoning for an intentional use of race, the use must be “narrowly tailored” to achieve a “compelling” government interest. Intentional discrimination can be proven with direct evidence, including express racial classifications or conduct that show a discriminatory motive. However, “direct evidence of intentional discrimination is hard to come by,” so the use of circumstantial evidence is more common.
In addition, a disparate impact can show discrimination. A disparate impact is proven by the effects of an actor’s practices rather than intent. As the Supreme Court has noted in regards to Title VII, which was enacted at the same time as Title VI, “[u]nder the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to freeze the status quo of prior discriminatory . . . practices.” When it is established that a policy creates a disparate impact, the decisionmaker must articulate a “substantial legitimate justification” for the challenged policy, meaning that it was “necessary to meeting a goal that was legitimate, important, and integral to the institutional mission.” Also, Title VI requires federally-funded recipients to implement a “less discriminatory alternative” if it is allowable and meets legitimate goals. Thus, a disparate impact policy is unlawful if there is no substantial legitimate justification or an alternative exists.
Under current legal precedent, a public-school district violates Title VI by either intentionally discriminating against one race or by implementing an unjustified policy that disproportionately affects students of a given race. Given that much of the racial discrimination that exists today is not born from intentional discrimination, it is imperative that the DOJ and DOE enforce Title VI using the disparate 4impact standard.
B. Social-Psychology Research
In order for the DOJ and DOE to effectively regulate public schools’ disciplinary actions, it is important to understand the underlying causes of the racial disparity in student discipline and the resulting school-to-prison pipeline. Multiple studies have examined the persistent racial disparities in student discipline rates, and research has revealed a deeply rooted, cyclical pattern of increasing student misbehavior and administered discipline. Thus, to understand the totality of the problem, it is necessary to examine the behavioral and psychological tendencies of teachers, students, and how the two groups interact.
1. Social-Psychological Factors of School Staff That Contributes to Disparity
Many teachers enter the profession with a strong teaching mission and as “idealists.” However, as teachers gain more experience, they are more likely to self-identify as “disheartened,” more likely to cite student-behavior problems as a major drawback, and less likely to believe good teaching can make a difference in one’s learning. Thus, as teachers work towards their teaching mission but encounter student misbehavior, a feeling of hindrance may arise. When paired with exposure to racial stereotypes, teachers can be influenced to discipline minority students more harshly and more frequently.
One specific factor is a teacher’s perception of students as troublemakers and a sense of feeling troubled. In one study, teachers felt more troubled, meaning they perceived heightened infraction severity, hindrance, and irritation, by a Black student’s infraction compared to a white student’s infraction. Also, Black students were more likely than white students to be labeled as troublemakers, which increased how severely teachers felt the student should be disciplined.
In addition, teachers’ racial biases play a role in perpetuating the cycle. As American society has shifted to morally condemn racism and to legally prohibit racial discrimination, racial biases have not disappeared but have become more hidden and implicit. An implicit attitude, as opposed to an explicit attitude, is an “automatic cognitive association” between a group of people and certain beliefs, and people may be “unwilling to endorse [implicit attitudes] as indicative of their beliefs.” Specifically, one study revealed that elementary school teachers had different expectations of students depending on the students’ ethnicity and had implicit, negative attitudes towards students of non-white, non-Western ethnicities. The implicit attitudes correlated with an achievement gap between minority students and white students.
Ultimately, teachers’ psychological and emotional responses likely inform their decisions to discipline students of color more frequently and more harshly. In addition, teachers’ disciplinary decisions are, at least in part, influenced by a desire to diminish student behavior barriers to achieving their teaching missions.
2. Student Social-Psychological Factors That Contribute to the Disparity
In general, students enter school wanting to learn and develop. However, minority students may question whether their abilities and behaviors will be seen in an unbiased light. In turn, these fears and the visible racial disparity in discipline impact minority students’ social-psychological tendencies.
One contributing factor to the vicious cycle of increased misbehavior and discipline is students’ loss of institutional trust. Adolescents of color, especially Black students, more readily notice teachers and others stereotyping and perceiving them as a threat by the time they enter middle school. This awareness among students of color causes them to lose institutional trust. In one study, institutional trust declined faster for Black and Latino middle school students, creating a “racial trust gap.” The trust gap was sustained by a racial disparity in discipline for “judgment call incidents,” such as “defiance” and “disobedience,” as opposed to objective infractions, such as cheating. This visible difference in discipline may cause minority students to question rules, the fairness of the institution, and teachers’ trustworthiness. In addition, a student’s level of institutional trust is a strong predictor of future misbehavior and educational pursuits.
Stereotype threats can also influence a student’s performance and confidence in school. A stereotype threat is a “situational threat of negative stereotypes,” which “does not depend on cuing internalized anxiety or expectancy.” It is cued by a recognition that a negative stereotype could apply to a person, and its level of threat depends on how closely a person identifies with the stereotyped group. A stereotype threat most impacts people who have great skills and confidence and have not adopted the stereotype to the point of doubting their abilities. Though Black students with activated negative stereotypes valued things related to Black experiences less, their devaluation was more likely a strategic self-presentation to deflect stereotypes than a self-rejection. Stereotype threats may cause students to underperform in schools and may contribute to students’ fear of being of stereotyped.
In sum, though most students want to learn in school, minority students face certain challenges that their white peers are not similarly exposed to. The concerns and tendencies of students of color perpetuate the vicious cycle of increased misbehavior and discipline.
3. Teacher-Student Interactions That Contribute to the Disparity
Much of the racial disparity in student discipline originates at the level of office referrals issued by teachers and school staff rather than through administrative decisions. In one study, the rates of office referrals of Black versus white students showed “large, statistically significant differences,” whereas administrative responses were “almost identical” across race. The racial disparities “remain even after controlling for socioeconomic status” and could not be explained by higher rates or more serious misbehavior of Black students. Instead, a difference in the type of infractions for which white students and Black students were referred contributed to the racial disparity. White students are more frequently referred for objective infractions and behavior, while Black students are referred more for infractions requiring subjective assessments.
In addition, race effects weakened as students moved through the disciplinary system. A student’s expulsion was most tied to the seriousness of an offense, the reasons for an initial office referral, and the student’s gender. The lower risk of differential treatment on the basis of race at the expulsion level may be indicative of the checks and balances in place for expulsions, such as formal hearings mediated by an independent officer. In contrast, on- and off-campus suspension referrals are mostly issued for “defiance of adult authority,” all while Black students are disproportionately referred for such behavior. This supports the finding that discipline of subjective behavior contributes to the racial disparity.
Overall, the problem stems from daily interactions between students and school staff, which lead to racialized perceptions, more office referrals, and a racial disparity in discipline. Ultimately, because students of color face higher rates of discipline, they are also more likely to be pushed into the school-to-prison pipeline.
C. Background on the School-to-Prison Pipeline
The school-to-prison pipeline is a process by which students are pushed out of school systems and into the criminal justice system. The pipeline is created by removing students from school by placing them “on out-of-school suspension, transferring them to alternative schools, expelling them, and/or having them arrested for minor offenses.” When students are no longer regularly in school, they are more susceptible to end up in trouble, detention, or jail.
As schools have adopted society’s tendency towards criminalization and incarceration, they have also adopted “zero tolerance policies.” Generally, such policies implement a harsh predefined mandatory consequence without an examination of the “seriousness of the behavior, mitigating circumstances, or the situational context.” Also, schools have increased “police and security presence at school, metal detectors, security cameras, locker and person searches, and all the accoutrements of formal legal control.” School districts with a disproportionate amount of poor and minority students are more likely to use police officers in schools. These officers exacerbate the school-to-prison pipeline by criminalizing school-based, minor offenses.
While zero-tolerance policies were originally intended to punish serious and dangerous infractions, the punishments have applied frequently to nonviolent violations. Thus, the rates of suspensions and expulsions have escalated since the adoption of zero-tolerance policies in the mid-1990s. However, there is no evidence that exclusionary policies like suspension or expulsion reduce school violence.
Zero-tolerance policies have increasingly removed students from schools and have made students more vulnerable to engage in unsupervised activities. An adolescent student is more than twice as likely to get arrested in a month when the student is suspended or expelled from school than in the months when the student is in school. Thus, as students are punished and excluded from school, many are ultimately thrown into the hands of law enforcement. Meanwhile, the consequences of arrest exist for students of all races and “appear to be universal.”
On the surface, zero-tolerance policies are neutral and applied evenhandedly, but race and ethnicity are strong predictors of student discipline. Black boys are suspended and expelled at three times the rate of white boys, and Black girls are suspended at six times the rate of white girls. As a result, the school-to-prison pipeline disproportionately affects students of color.
D. Policy Background
1. Obama-Era Policy Guidance
On January 8, 2014, the U.S. DOE and the DOJ under the Obama Administration released a first-ever policy guidance on school discipline and school climate to ensure public school districts comply with federal law, namely Title IV and Title VI of the Civil Rights Act of 1964. The objective of the policy guidance was to help schools create “safe, inclusive and positive learning environments” by improving school climates and implementing “fair, non-discriminatory” responses to misbehavior. The guidance was inspired by data from the Office of Civil Rights (“OCR”), which revealed that minority students are disciplined at higher rates and more harshly, are at a higher risk of entering the school-to-prison pipeline, and that racial discrimination has caused this racial disparity. In order to achieve its goals, the Obama Administration sought to enforce federal laws to eliminate unlawful racial discrimination in student discipline. Specifically, the DOE and DOJ were to investigate complaints, proactively initiate compliance reviews, and provide assistance to schools as they adopt new antidiscriminatory disciplinary policies.
Most notably, the guidance expanded the standard under which a school’s conduct is considered discriminatory by adding “disparate impact” to the established intentional discriminatory prohibition. First, a policy is intentionally discriminatory and unlawful if a student is subjected to “different treatment” based on the student’s race. Such a policy can be either facially discriminatory by having explicit discriminatory language, or it can be facially neutral but administered in a discriminatory manner, such as when an administrator exhibits racially charged behavior while disciplining a student. Second, if a neutral policy is applied evenhandedly but has a disparate and unjustified impact on students of a certain race, it may be unlawful. A policy that has an adverse impact on students of a particular race is unlawful if it is either not necessary to meet an important educational goal or is necessary but there is a comparable, effective alternative that causes less of a burden or impact. For example, if Black students are excessively and more frequently punished for using electronic devices and there is no evidence of explicit racial bias, the policy is unlawful because of the adverse impact and lack of justification to meet an important educational goal.
In sum, the DOE and DOJ, under President Obama, created a guidance to eliminate the racial disparity in student discipline and believed that invalidating both intentionally discriminatory and disparate impact policies was the best solution.
2.Effects of the Obama-Era Policy Guidance
Though the Obama-Era policy was in place for only four years, the School Superintendents Association found that some school districts were impacted by the Obama-Era policy guidance. Even though schools were not required to adopt any particular action, 16% of the 950 school district leaders in forty-seven states stated that their district had modified discipline policies in response to the guidance. Some school districts had already implemented the guidance on their own and did not need to change policies. However, the greatest impact of the guidance was that it communicated to public-school administrators that the DOE and DOJ will investigate and correct civil rights violations.
Of the school leaders that did modify their policies, only 4.5% stated the discipline guidance had a negative effect, while 44% indicated a positive effect. Some of the school leaders who cited a negative impact felt that the guidance forced school staff to be more lenient towards minority students in order to avoid an accusation of racism and felt frustrated by the extra steps. In addition, some school leaders noted that a lack of funding, resources, and staff made it difficult for schools to manage students that were kept in school instead of given an out-of-school suspension. In contrast, some of the respondents who indicated a positive outcome felt that the guidance influenced school staff to “use more forethought, consideration, and find alternatives,” “address bias and prejudice,” and “increase their awareness and understanding.” In addition, the survey revealed that “urban and large districts were more likely to adopt new discipline policies and practices because of the 2014 discipline guidance.”
Despite the frustrations felt by some school staff, the positive impact of the Obama-Era guidance outweighed the negative: ten times as many school districts noted a positive effect than noted a negative one. The guidance caused some schools to address racial biases and to find alternative actions that kept students in school, especially for minor offenses.
3.Trump Administration’s Rescission of the Obama-Era Guidance
The Federal Commission on School Safety, created by President Trump after the Parkland shooting, investigated school gun violence and issued a report with recommended policies. Specifically, the Commission noted that the 2014 guidance caused some schools to become “fearful of potential [federal] investigations”; and thus, some schools “ignored or covered up – rather than disciplined – student misconduct in order to avoid any purported racial disparity in discipline numbers than might catch the eye of the federal government.” In response, the Commission recommended that the DOJ and DOE rescind the 2014 guidance.
On December 21, 2018, following the release of the report, the DOJ and DOE issued a Dear Colleague Letter, in which the Obama-Era policy guidance was rolled back. It notes that the previous guidance advanced “policy preferences and positions not required or contemplated by Title IV or Title VI.” Despite the rescission, the DOJ and DOE were to remain “firmly committed to vigorously enforcing civil rights protections on behalf of all students.”
In a “Questions & Answers” document that was released along with the 2018 Letter, the OCR provided further details on a public school’s legal obligations and its future regulatory involvement. Specifically, the OCR explained it will only investigate a complaint that alleges a student of a certain race was being treated differently or if a racially neutral policy was adopted with the intent to target students of a particular race.  Thus, the disparate impact standard was revoked by the Trump Administration.
A. Analysis of Trump-Era Policy Guidance
The Trump Administration’s decision to roll back the Obama-Era guidance was misguided. While the Obama Administration understood the path to safer schools as protecting students’ civil rights and providing alternatives to exclusionary discipline, the Trump Administration had taken a different approach. The Trump Administration believed that public schools may become safer if school administrators have more discretion and freedom to apply disciplinary actions, even if the actions result in a racially disparate impact. However, greater discretion and greater racialized discipline will not make schools safer, especially not against school shootings. Overall, the Trump Administration was incorrect to rescind the disparate impact standard given current legal precedent and social-psychological research, and it cannot “vigorously enforce civil rights protections on behalf of all students” under the current policy.
1.Current Legal Precedent Supports Disparate Impact Standard
The Federal Commission on School Safety incorrectly held that a public school policy does not violate Title VI when it creates a racialized disparate impact despite lacking a discriminatory intent. Specifically, the Commission stated that the validity of the 2014 guidance “cannot be squared away with the Supreme Court’s holdings.” However, the Supreme Court has never held that a federal agency cannot regulate a disparate impact policy. Rather, the Supreme Court held in Lau v. Nichols that section 601 of Title VI bars a practice that has a discriminatory effect on protected groups, even if the practice is not purposefully discriminatory. Also, Justice Stewart, in his concurrence, held that section 602 allows agencies to enact rules that broadly furthered the purpose of deterring discrimination. In Lau, a school district that did not provide supplemental language courses to a majority of non-English speaking students violated Title VI because the lack of instruction had a discriminatory effect even though no purposeful discriminatory design was present. Though the Court later limited Lau by asserting that section 601 only outlaws intentional discrimination, it has never addressed whether federal agencies may regulate disparate impact policies,  and so the expansive regulatory view of Title VI in Lau has never been explicitly rejected. The Federal Commission does not cite a holding for its position but rather relies on dicta and footnotes to further its argument that a federal agency can only prohibit intentional discrimination. Based on current precedent, two possible interpretations of section 602 exist: (1) agencies may issue “broad prophylactic rules” reaching policies beyond intentional discrimination; and (2) agencies are limited to regulating only intentional discrimination. Thus, unlike the Federal Commission’s proposition, there is no Supreme Court precedent that squarely holds a federal agency cannot regulate disparate impact policies. Though the Trump Administration has discretion, it is incorrect to remove the disparate impact standard on the grounds of current legal precedent and to state that the Obama-Era guidance was against precedent.
2. A Disparate Impact Standard Does Not Increase School Shootings
First, school shootings are not caused or impacted by an attempt to lower racial disparity in student discipline. Since 2010, total incidents of school shootings have steadily been increasing despite different policies being in place since that time. Between 2010 and 2014, prior to the Obama-Era policy guidance, there were 150 total incidents of school shootings, or an average of thirty per year.  From 2015 to 2018, there were 261 incidents an average of sixty-five per year. In 2019, after the rescission of the guidance, there were 118 incidents. This steady increase suggests that incidents of school shootings are not correlated with the policies issued by the DOE and DOJ.
Second, school shooters are predominately white students, and the Obama-Era guidance was structured to tackle the over-discipline of primarily minority students. The negative impact cited by some school administrators mostly pertained to disciplining students of color. In fact, the Parkland shooter’s ability to buy, own, or possess a firearm had not been impacted by his involvement in a program that complied with the 2014 guidance.
Thus, rescinding the 2014 guidance will not confront most students who turn to gun violence.
Third, the school districts that adopted the Obama-Era guidance did not alter the way they treated violent and serious infractions. Rather, school districts, regardless of the policy guidance, investigated and dealt with such infractions and violent students in a serious manner, regardless of race. The greatest impact the guidance had was upon smaller infractions and altered how schools responded particularly to Black and Latino students.
Overall, school safety is a complex issue, but the 2014 guidance to minimize racial disparity in student discipline does not conflict with the goal of eliminating school shootings. A school’s compliance with the guidance would help improve school climate and increase school safety. To truly “vigorously enforce civil rights protections on behalf of all students,” a disparate impact standard should be reinforced.
B. Predicted Future Impact of Trump-Era Policy Guidance
The decision to rescind the Obama-Era guidance will not create the intended result of decreasing school homicides and will negatively impact students of color, particularly Black and Latino students. Policies generated from negative, implicit biases are immune to challenges when only an intentionally discriminatory standard is applied. Therefore, without the disparate impact standard, school staff may let their racial biases and disciplinary actions go unexamined and will refer Black and Latino students more readily for subjective infractions. Ultimately, more students of color will be pushed out of schools and into the school-to-prison pipeline.
Aside from the increases in the disparate impact and the strengthening of the school-to-prison pipeline, students will also lose more institutional trust and perform poorly. The Trump Administration’s decision tells students that civil rights violations will not be taken seriously. Instead, this decision treats student discipline as justified, no matter how unfair it is. Students of color will have less reason to believe school staff will not be biased against and discriminate against such students. As young students lose institutional trust, their level of misbehavior will increase, and their prospects for future education beyond secondary education will decrease. Thus, students may more easily fall into the belief that their success, expected performance, and treatment will be impacted by racial stereotypes.
III. PROPOSED RECOMMENDATIONS
Policies issued by the DOE and DOJ must go further than the current guidance to address the underlying causes of the school-to-prison pipeline. It is not enough to only investigate policies that are facially discriminatory because almost none are. Instead, discrimination results from implicit biases and subjective judgments by teachers and administrators. Furthermore, current legal precedent supports the invalidation of disparate impact policies under Title VI. Therefore, the DOE and DOJ ought to ensure that unjustified disparate impact policies and practices are invalidated and altered.
Also, given the roll back of the Obama-Era guidance, states and local school districts should examine their disciplinary actions and create alternatives. The DOE and DOJ recognized that “[s]tates and local districts play the primary role in establishing educational policy, including how to handle specific instances of student misconduct.” Therefore, public school districts are not limited to the new guidance and can mitigate the predicted effects by doing more than the federal government to protect students’ civil rights.
Ultimately, a comprehensive solution involving the DOE, DOJ, states, and local governments will best challenge the underlying issues sustaining the school-to-prison pipeline.
In order to challenge the racial disparity in student discipline and to eliminate the school-to-prison pipeline, the disparate impact standard should be restored. Racial disparity is not only the result of intentional discrimination but is more so created by policies with unintentional, disparate impacts. The disparate impact standard is supported by current legal precedent and is a necessary tool to confront the social-psychological factors bolstering the racial disparity. Restoring the disparate impact standard is a needed step in increasing students’ institutional trust, challenging school staff’s implicit attitudes, and repairing student-teacher relationships. Ultimately, the standard is a safeguard against discriminatory decisions and is necessary to eliminate the existing school-to-prison pipeline.
*. Executive Notes Editor, Southern California Law Review, Volume 94; J.D. Candidate 2021, University of Southern California Gould School of Law; B.S. Biopsychology, Cognition, and Neuroscience 2016, University of Michigan. Thank you to my parents, Aleksandar and Jasna, for encouraging me to pursue a law degree and for their constant support. I also would like to thank Professor Dan Simon for his guidance during the drafting of this Note. Lastly, thank you to the editors of the Southern California Law Review for their excellent work.. Travis Riddle & Stacey Sinclair, Racial Disparities in School-Based Disciplinary Actions Are Associated with County-Level Rates of Racial Bias, 116 Proc. Nat’l Acad. Sci., 8255, 8255 (2019); Moriah Balingit, Racial Disparities in School Discipline Are Growing, Federal Data Show, Wash. Post (Apr. 25, 2018, 11:41 PM), https://www.washingtonpost.com/local/education/racial-disparities-in-school-discipline-are-growing-federal-data-shows/2018/04/24/67b5d2b8-47e4-11e8-827e-190efaf1f1ee
_story.html [https://perma.cc/MQQ9-L2B8]. . See Emily Arcia, Achievement and Enrollment Status of Suspended Students: Outcomes in a Large, Multicultural School District, 38 Educ. & Urb. Soc’y 359, 367 (2006). . See Virginia Costenbader & Samia Markson, School Suspension: A Study with Secondary School Students, 36 J. Sch. Psychol. 59, 73 (1998). . Judith A.M. Scully, Examining and Dismantling the School-to-Prison Pipeline: Strategies for a Better Future, 68 Ark. L. Rev. 959, 959–60 (2016); see also U.S. Dep’t of Educ., Office for Civil Rights, Civil Rights Data Collection: Data Snapshot: School Discipline 2 (2014), https://www2.ed.gov/about/offices/list/ocr/docs/crdc-discipline-snapshot.pdf [https://perma.cc/BMS8-X
RG6]. . U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter on the Nondiscriminatory Administration of School Discipline 5 (2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-residential-facilities-201412.pdf. . U.S. Dep’t of Justice & U.S. Dep’t of Educ., Dear Colleague Letter (Dec. 21, 2018), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201812.pdf; see also Fed. Comm’n on Sch. Safety, Final Report of the Federal Commission on School Safety 70 (Dec. 18, 2018), https://accentdistributing.com/wp-content/uploads/2020/09/school-safety-report.pdf (stating that the Obama-Era guidance “lacks foundation in applicable law.”). . See Fed. Comm’n on Sch. Safety, supra note 6, at 67. . 42 U.S.C. § 2000d. . U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 5, at 3. . Title VI of the Civil Rights Act of 1964, U.S. Dep’t of Just., https://www.justice.gov/crt/fcs/TitleVI [https://perma.cc/MQQ9-L2B8]; see also Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 609 (1983) (“The legislative history of Title VI is replete with references to the Act’s central purpose of ensuring that taxpayers’ money be spent nondiscriminatorily.”). . 42 U.S.C. § 2000d-1. . See Title VI of the Civil Rights Act of 1964, supra note 10; Education and Title VI, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html [https://perma.cc/34TR-GY3V]. . Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1406 (11th Cir. 1993) (“While Title VI itself, like the Fourteenth Amendment, bars only intentional discrimination, the regulations promulgated pursuant to Title VI may validly proscribe actions having a disparate impact on groups protected by the statute, even if those actions are not intentionally discriminatory.”); see also 28 C.F.R. § 42.104(b)(2) (“A recipient . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin . . . .”); 34 C.F.R. § 100.3(b)(2). . See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 286–87 (1978); Washington v. Davis, 426 U.S. 229, 242 (1976).
. Doe v. Lower Merion Sch. Dist., 665 F.3d 524, 548 (3d Cir. 2011).
. Williams v. City of Dothan, 745 F.2d 1406, 1414 (11th Cir. 1984).
. Parents Involved in Cmty. Schools v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007).. Applying Title VI of the Civil Rights Act of 1964, Am. Bar Ass’n (2016), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-35/november-2016/applying-title-vi-of-the-civil-rights-act-of-1964) [https://perma.c
c/LA3P-QMQ4]; see also Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (discussing intentional claim under the 14th Amendment). . Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (O’Connor, J., concurring). . See Village of Arlington Heights, 429 U.S. at 266 (discussing violations under the 14th Amendment and that cases of a clear discriminatory pattern are rare, so the “Court must to look to other evidence”). . Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 593 (1983). . See Lau v. Nichols, 414 U.S. 563, 568 (1974). . Griggs v. Duke Power Co., 401 U.S. 424, 430 (1971) . Georgia State Conf. v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985). . Elston v. Talladega Cty. Bd. of Educ., 997 F.2d 1394, 1413 (11th Cir. 1993).
. Id.. Id. at 1407. . See Jason A. Okonofua, Gregory M. Walton & Jennifer L. Eberhardt, A Vicious Cycle: A Social-Psychological Account of Extreme Racial Disparities in School Discipline, 11 Persp. on Psychol. Sci. 381, 382 (2016). . Id. . See Jean Johnson, Andrew Yarrow, Jonathon Rochkind & Amber Ott, Teaching for a Living: How Teachers See the Profession Today, Educ. Dig., Jan. 2010, at 5. . 40% of the total teacher population were older teachers with more experience and had categorized themselves as “disheartened.” Id. at 6–7. . Id; see also Matthew P. Steinberg & Johanna Lacoe, What Do We Know About School Discipline Reform? Assessing the Alternatives to Suspensions and Expulsions, 17 Educ. Next 3 (2017) (“[M]ore than one-third of teachers in 2012 reported that student behavior problems and tardiness interfered with their teaching.”). . Johnson et al., supra note 30, at 7 (50% of the disheartened teachers felt that good teaching can make a difference in a student’s learning, whereas 75% of idealist teachers believed that to be true). . See Okonofua et al., supra note 28, at 384. . Id. . Jason A. Okonofua & Jennifer L. Eberhardt, Two Strikes: Race and the Disciplining of Young Students, 26 Psychol. Sci. 617, 619 (2015). Specifically, teachers felt more troubled by a student’s second infraction than by the student’s first infraction when the student was Black compared to white, and second infractions committed by Black students troubled teachers more than second infractions committed by white students. Id. . Id. at 620. Furthermore, teachers more readily envisioned themselves suspending the Black students in the future than the white students and therefore were more likely to use the minor infractions of Black students to predict future suspensions. Id. at 621–22. . Natasha Warikoo, Stacey Sinclair, Jessica Fei & Drew Jacoby-Senghor, Examining Racial Bias in Education: A New Approach, 45 Educ. Researcher 508, 508 (2016). . Linda van den Bergh, Eddie Denessen, Lisette Hornstra, Marinus Voeten & Rob W. Holland, The Implicit Prejudiced Attitudes of Teachers: Relations to Teacher Expectations and the Ethnic Achievement Gap, 47 Am. Educ. Res. J. 497, 518 (2010). Teachers with negative implicit attitudes were more likely to “evaluate ethnic minority students as being less intelligent and having less promising prospects for their school careers.” Id. . Id. Biased attitudes predicted higher achievement of white students and lower achievement of ethnic minority students. Id. . Okonofua et al., supra note 28 at 393. . Id. at 385. Students of color worry that teachers will adopt negative stereotypes that portray them as less intelligent and more dangerous. Id. . Id. . See id. . David S. Yeager, Valerie Purdie-Vaughns, Sophia Yang Hooper & Geoffrey L. Cohen, Loss of Institutional Trust Among Racial and Ethnic Minority Adolescents: A Consequence of Procedural Injustice and a Cause of Life-Span Outcomes, 88 Child Dev. 658, 660–61 (2017). . Id. at 661. . Id. at 664, 671. . Id. at 666. . Id. . Id. at 668. A year’s level of defiance of institutional policies can be predicted by the student’s level of institutional trust the previous year. Id. Black students who lost more trust than expected in seventh grade or in the beginning of eighth grade were less likely to enroll in a four-year college. Id. . Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 Am. Psychologist 613, 617 (1997). . Id. . Id. at 617, 622. . Id. at 621–22. . Russell J. Skiba, Robert S. Michael, Abra Carroll Nardo & Reece L. Peterson, The Color of Discipline: Sources of Racial and Gender Disproportionality in School Punishment, 34 Urb. Rev. 317, 333–34 (2002). . Id. at 333. . Id. . Id. at 334. In fact, white students were referred more frequently for behaviors such as “smoking, leaving without permission, obscene language, and vandalism,” while Black students were referred more often for “disrespect, excessive noise, threat, and loitering.” Id; see also Yolanda Anyon, Jeffrey M. Jenson, Inna Altschul, Jordan Farrar, Jeanette McQueen, Eldridge Greer, Barbara Downing & John Simmons, The Persistent Effect of Race and the Promise of Alternatives to Suspension in School Discipline Outcomes, 44 Child. & Youth Services Rev. 379, 383 (2014) (explaining that higher rates of suspension and law enforcement referrals among Black and Latino students in the Denver public school system were not solely the result of higher rates of misbehavior, poverty, or special education eligibility). . Skiba et al., supra note 55, at 333–34 . Id. . Anyon et al., supra note 58, at 383. . Id. . Id. . Anne Gregory & Rhona S. Weinstein, The Discipline Gap and African Americans: Defiance or Cooperation in the High School Classroom, 46 J. Sch. Psychol. 455, 461 (2008); see also Steinberg & Lacoe, supra note 32, at 9 (“[I]nsubordination has accounted for an increasing share of all serious disciplinary actions . . . [while] serious disciplinary actions for more serious student misconduct . . . declined from 50 to 22 percent.”). . Gregory & Weinstein, supra note 64. Specifically, though Black comprised 30% of the student population, they comprised 58% of the defiance referred, compared to white students, who comprised 37% of school enrollment and only 5% of those referred for defiance. Id. In addition, “almost 70% of all Black student referrals were issued for defiance compared to 55% of referrals for white students.” Id. . Scully, supra note 4, at 959. . Id. at 960. . Id. . Nancy A. Heitzeg, Education or Incarceration: Zero Tolerance Policies and the School to Prison Pipeline, 9 F. on Pub. Pol’y 1, 2, 8 (2009). . Id. at 8. . Id. . Christopher A. Mallett, The School-to-Prison Pipeline: A Critical Review of the Punitive Paradigm Shift, 33 Child Adolescent Soc. Work J. 15, 20 (2016). . Heitzeg, supra note 69, at 9. . Id. at 13. For example, in 2011–2012, 3.45 million students were suspended out of school, and 130,000 students were expelled. School Climate and Discipline: Know the Data, U.S. Dep’t of Educ., https://www2.ed.gov/policy/gen/guid/school-discipline/data.html [https://perma.cc/J6YM-79G3]. The 2011–2012 rates are nearly double the rates in 1974. Id. . Am. Psychological Ass’n Zero Tolerance Task Force, Are Zero Tolerance Policies Effective in Schools? An Evidentiary Review and Recommendations, 63 Am. Psychologist 852, 852–862 (2008). . Kathryn C. Monahan, Susan VanDerhei, Jordan Bechtold & Elizabeth Cauffman, From the School Yard to the Squad Car: School Discipline, Truancy, and Arrest, 43 J. Youth Adolescence 1110, 1118 (2014). . Id. at 1116. . Id. at 1119. . Scully, supra note 4, at 961. . U.S. Dep’t of Educ. Office of Civil Rights, supra note 4. . Scully, supra note 4, at 959–60; see also U.S. Dep’t of Educ. Office of Civil Rights, supra note 4. . U.S. Departments of Education and Justice Release School Discipline Guidance Package to Enhance School Climate and Improve School Discipline Policies/Practices, U.S. Dep’t of Educ., (Jan. 8, 2014), https://www.ed.gov/news/press-releases/us-departments-education-and-justice-release-school-discipline-guidance-package; see also Cheryl Staats, Implicit Racial Bias and School Discipline Disparities: Exploring the Connection (2014). . U.S. Departments of Education and Justice Release School Discipline Guidance Package, supra note 82. . U.S. Dep’t of Educ. & U.S. Dep’t of Just., supra note 5, at 3; see also, U.S. Dep’t of Educ. Office of Civil Rights, supra note 4; The Leadership Conference Educ. Fund, School Discipline Guidance and Students’ Civil Rights 1 (Mar. 2018), http://civilrightsdocs.info/pdf/education/Sch
ool-Discipline-Policy-Brief.pdf [https://perma.cc/F2G4-7EKB]. . U.S. Dep’t of Educ. & U.S. Dep’t of Just., supra note 5, at 3–4. . Id. at 2–3. . Id. at 16. . Id. at 8. . Id. at 5. . Id. at 5–6. . Id. at 8. . Id. at 9. . Id. at 13. . Sch. Superintendents Ass’n, 2018 AASA Discipline Survey: An Analysis of How the 2014 Dear Colleague Letter on Nondiscriminatory Administration of School Discipline is Impacting District Policies and Practices, 1 (2018), https://aasa.org/uploadedFiles/AASA_Blog
(1)/AASASurveyDisciplineGuidance2014.pdf [https://perma.cc/6KEC-FS7M]; see also Evie Blad, Here’s What the End of Obama-Era Discipline Guidance Means for Schools, Educ. Week (Dec. 18, 2018), https://www.edweek.org/leadership/heres-what-the-end-of-obama-era-discipline-guidance-means
g=recent%20articles%20dynamic&cckw=&cccv=dynamic%20ad&gclid=EAIaIQobChMI4ryli8jV6wIVh8DACh3w3QP-EAAYASAAEgK_OvD_BwE [https://perma.cc/W9SE-MJKS]. . Sch. Superintendents Ass’n, supra note 94. . Id. at 7. A 2013 survey found that 56% of the 450 school leaders interviewed had recently revised their student code of conduct. Id.; see also, Steinberg & Lacoe, supra note 32, at 44 (stating that in an April 2014 survey of 500 school superintendents, 84% stated that their districts had updated their code of conduct within the three previous years). . See Letter to ED and DOJ: Opposition to Rescission of Joint School Discipline Guidance Package, Leadership Conf. on Civ. & Hum. Rts. (Jan. 1, 2019), https://civilrights.org/resource/letter-to-ed-and-doj-opposition-to-rescission-of-joint-school-discipline-guidance-package [https://perma.cc/5
YSW-4JJB] (a coalition of 75 national and 45 state organizations signed a letter to the Education Secretary and Attorney General stating that the “2014 Dear Colleague letter clarifies that ED and DOJ expect schools and districts to treat all children fairly . . . .”). . Sch. Superintendents Ass’n, supra note 94, at 1–2. . Id. at 2. . Id. at 4–5. . Id. at 2. . Id. at 4. . Fed. Comm’n on Sch. Safety, supra note 6, at 1. . Id. at 67–68. . Id. at 72. . U.S. Dep’t Justice & U.S. Dep’t of Educ., supra note 6, at 1. . Id. . Id. . U.S. Dep’t. of Educ. Office Civil Rights, Questions & Answers on Racial Discrimination and School Discipline (2018). . Id. at 1–2. . U.S. Departments of Education and Justice Release School Discipline Guidance Package, supra note 82 (quoting former Attorney General Eric Holder, “By ensuring federal civil rights protections, offering alternatives to exclusionary discipline and providing useful information to school resource officers, we can keep America’s young people safe and on the right path”). . Fed. Comm’n on Sch. Safety, supra note 6, at 67. . U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2. . Fed. Comm’n on Sch. Safety, supra note 6 at 71. . Lau v. Nichols, 414 U.S. 563, 568 (1974). . Id. at 571 (Stewart, J., concurring) (noting that a policy under section 602 will be upheld “so long as it reasonably related to the purposes of the enabling legislation”). . Id at 564, 568 (majority opinion). . Alexander v. Sandoval, 532 U.S. 275, 285 (2001) (“[W]e have since rejected Lau’s interpretation of §601 as reaching beyond intentional discrimination.”) . Cf. Id. at 308 (Stevens, J., dissenting) (noting that “the question whether §601 applies to disparate iimpact claims has never been analyzed by this Court on the merits”). . Fed. Comm’n on Sch. Safety, supra note 6, at 71. The Federal Commission cites to Sandoval to support its arguments, but the Court in Sandoval did not reach the issue of whether section 602 grants federal agencies the ability to regulate disparate impact policies. Sandoval, 532 U.S. at 281–82. . Sandoval, 532 U.S. at 305 (Stevens, J., dissenting) . JD S. Hsin, Cong. Research Serv., R45665, Civil Rights at School: Agency Enforcement of Title VI of the Civil Rights Act of 1964 10–11 (2019). . K-12 School Shooting Database, Ctr. for Homeland Def. & Security, https://www.chds.
us/ssdb/view-chart/?chartid=8 [https://perma.cc/2SZY-VLUX]. . Id. . Id. . Id. . Tiffany Xie, Mass Shooters Have a Gender and a Race: A Closer Look at White Male Privilege, Pol. Res. Associates (June 19, 2014), https://www.politicalresearch.org/2014/06/19/mass-s
hooters-have-a-gender-and-a-race [https://perma.cc/8WD3-WUNT]. . See Sch. Superintendents Ass’n, supra note 94, at 2. For example, one district leader noted “minority students have received more lenient consequences than non-minority students in order to prevent minority students from accusing the school of racism.” Id. . Marjory Stoneman Douglas High Sch. Pub. Safety Comm’n, Initial Report 278 (2019). . See ACLU, Key Tool Issued to Help End School-to-Prison Pipeline (Jan. 8, 2014), https://www.aclu.org/press-releases/aclu-comment-groundbreaking-federal-school-discipline-guidance (explaining that the guidance did not eliminate law enforcement officers in schools but mostly provided a clear delineation of roles for handling minor discipline). . See RJ Vogt, Will A Policy Rollback Swell the School-to-Prison Pipeline, Law360 (Jan. 13, 2019, 8:02 PM), https://www.law360.com/articles/1118007 [https://perma.cc/99LJ-66E7]. . Jon Valant & Michael Hansen, School Safety Commission’s Report Uses Tenuous Logic to Walk Guidance on School Discipline, Brookings (Dec. 21, 2018), https://www.brookings.edu/blog/bro
wn-center-chalkboard/2018/12/21/school-safety-commissions-report-uses-tenuous-logic-to-walk-back-guidance-on-school-discipline [https://perma.cc/L7XA-CHJZ]. . U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2. . Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582, 593 (1983) (“[I]t must be concluded that Title VI reaches unintentional, disparate impact discrimination as well as deliberate racial discrimination.”). . U.S. Dep’t of Justice & U.S. Dep’t of Educ., supra note 6, at 2.
Article | Anti-Discrimination Law
A Glimmer of Hope for California’s “Well-Intentioned” Attempt to Put More Women in the Boardroom
by Jacqueline Concilla*
From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 603 (2020)
Keywords: Senate Bill 826, Equal Protection Doctrine
This Note necessarily hones in on the intersection between the principles underlying discrimination on the basis of gender and those animating the racial affirmative action cases. Part I of this Note explores the development of the Court’s equal protection doctrine, especially as it pertains to gender classifications. It then turns to the development of intermediate scrutiny as the standard of review for gender distinctions. Next, it examines how the Court has applied the equal protection doctrine in cases involving quotas and affirmative action programs designed to increase diversity, and how an anomaly has arisen between its treatment of race and gender. Finally, it introduces SB 826, California’s attempt at mandating gender diversity in the corporate boardroom. Part II of this Note then argues that the race/gender anomaly has left a narrow path for SB 826 to prevail against an equal protection claim, even within the Court’s current equal protection doctrine. Specifically, a colorable case exists that SB 826 will survive intermediate scrutiny because remedying past discrimination and dismantling gender stereotypes are important government interests to which the Act is substantially related. Finally, Part III concludes that although its success is unlikely given the makeup of the Supreme Court in 2020, SB 826 advances the goals of the Equal Protection Clause and that the Court would not have to alter its existing framework to uphold it.
*. J.D. Candidate, University of Southern California Gould School of Law, 2020. Many thanks to Professor Sam Erman for his guidance in developing this piece. Thank you to the entire Southern California Law Review team for their invaluable editing and insights, particularly Alix Lotty and Jason Rooindej. This Note would not have been possible without you. Finally, my deepest gratitude to my family for their unconditional support.
Article | Tort Law
Do Black Injuries Matter?: Implicit Bias and Jury Decision Making in Tort Cases
by Jonathan Cardi,
* Valerie P. Hans† & Gregory Parks‡
From Vol. 93, No. 3 (March 2020)
93 S. Cal. L. Rev. 507 (2020)
Keywords: Implicit Racial Bias, Tort Decision Making
They say that black lives matter, but how much relative to white lives? Political activists and legal theorists have debated whether the injuries suffered by African Americans are devalued relative to the injuries of whites. This study is one of the first comprehensive experimental examinations of how race affects judgments of tort injuries. We tested the role of the litigant’s race and the impact of implicit racial bias in tort case decision making. Using scenarios based on classic tort cases, we systematically varied the race of the plaintiff and the race of the defendant to create multiple versions of each scenario. Participants read one version of each scenario, judged whether the defendant ought to be legally responsible for the injury, and gave an award in money damages. As an added layer, participants also completed the Implicit Association Test (“IAT”) for black and white races.
The results revealed that race—and implicit racial bias—matter in evaluating the responsibility and remedies for tort injuries. Participants who had high IAT scores attributed significantly more legal responsibility to black defendants than to white defendants and recommended higher awards for plaintiffs who sued black defendants. The dollar awards for the injuries suffered by black plaintiffs were lower than awards for the same injuries experienced by white plaintiffs. These results offer troubling new evidence of how race, responsibility, and injury are intertwined. The results are complex and nuanced, revealing once again that the role of implicit bias in legal decision making—particularly in the torts arena—is ripe for further study.
*. Jonathan Cardi is Professor of Law and Executive Associate Dean for Academic Affairs, Wake Forest University School of Law. The research was supported by Wake Forest University School of Law and Cornell Law School. Conversations with Anthony Burrow, Stephen Ceci, Kayla Burd, Krystia Reed, Jeffrey Rachlinski, and Doron Teichman about research on implicit bias were helpful to us. Jasmine Burgess provided excellent research assistance; Francoise Vermeylen gave excellent statistical advice; and Nan Smith and Peter Hook helped us with the tables and figures. Presentations at the Aix Remedies Discussion Forum (June 27, 2018), a Cornell Law School Faculty Workshop (June 27, 2018), and the Conference on Empirical Legal Studies (November 9, 2018) were extraordinarily useful in helping us think about our results.
†. Valerie P. Hans is Charles F. Rechlin Professor of Law, Cornell Law School.
‡. Gregory Parks is Professor of Law and Associate Dean of Research, Public Engagement, and Faculty Development, Wake Forest University School of Law.
From Volume 92, Number 2 (January 2019)
Justice or Just Us?:
SFFA v. Harvard and Asian Americans in Affirmative Action
TABLE OF CONTENTS
Here is what I sometimes suspect my face signifies to other Americans: an invisible person, barely distinguishable from a mass of faces that resemble it. A conspicuous person standing apart from the crowd and yet devoid of any individuality. An icon of so much that the culture pretends to honor but that it in fact patronizes and exploits. Not just people “who are good at math” and play the violin, but a mass of stifled, repressed, abused, conformist quasi-robots who simply do not matter, socially or culturally.
I can recall excitedly filling out my college applications in the fall of 2010. I can recall writing my application essay about my experience at a private, all-girls Catholic high school. I can recall being told to volunteer more and to join speech and debate. I can recall being told that playing four years of varsity tennis would make me appear more well-rounded. I can recall being told to not check the “Asian” box when the application asked for my ethnicity. At eighteen years old, this sounds like being told it is better to be anything besides exactly who you are. I can recall feeling that it was not enough to be the daughter of a first-generation immigrant from China and the granddaughter of Japanese American citizens interned during World War II. The appropriate box for me was apparently “Other.”
This revelation about my own experience was necessary to understand the frustration felt by the Asian American community regarding college admissions. While this frustration may be well-founded, the Asian American community is not unified on what the appropriate reaction to it should be. On one hand, the model minority myth perpetuates a stereotype that portrays Asian Americans as successful. But on the other hand, Asian Americans feel wide-spread discrimination that goes unrecognized due to an image of them as achievers of the “American Dream.” This places Asian Americans in a precarious middle ground as a “racial bourgeoisie”—stuck between being viewed as “superior” but feeling inferior. Asian Americans should be cautioned, though, that serving in this racial middle ground runs the risk of “reinforc[ing] white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough.” Asian Americans have long been left out of the white–black affirmative action debate, and this opportunity to speak out should not be tarnished by being used as a tool to further white images at elite universities.
This Note examines the arguments made in Students for Fair Admissions v. Harvard College, which allege that Harvard’s consideration of race is a violation of Title VI of the Civil Rights Act of 1964 because it is not narrowly tailored to a compelling interest of diversity. The complaint filed by Students for Fair Admissions (“SFFA”) came off the back of Justice Alito’s comments in his dissent in Fisher v. University of Texas at Austin (Fisher II), which proposed the possibility that Asian Americans may face discrimination in admissions. While this was an important inclusion of Asian Americans in the discussion, Justice Alito’s comments in Fisher II perpetuated the logical fallacy that Asian Americans are losing admission spots to African Americans and Hispanic Americans due to affirmative action, and may have encouraged the initiation of SFFA’s action against Harvard College. However, while the frustration experienced by many in the Asian American community over what feels like racial ceilings on Asian American admissions at elite universities is valid, these ceilings are the result of negative action aimed against Asian Americans, not the result of affirmative action. Prohibiting universities from considering race as part of a holistic admissions process will not eliminate the negative action felt by Asian Americans.
SFFA’s use of Asian Americans to target affirmative action is a parallel to the double movement that occurred in the nineteenth century. While there was a movement toward inclusion based on increased egalitarianism among white males to reduce barriers based on wealth and property ownership, there was also a movement toward exclusion of African Americans, women, Native Americans, and non-white immigrants. SFFA and the organization’s creator, Edward Blum, move to include Asian Americans as part of the group deemed worthy enough to “earn” spots at elite universities only to maintain the dominance needed to continue to exclude other groups. The status that is ascribed to different groups comes with a series of stereotypes and associations that the larger, dominant group naturalizes to determine whether the group is eligible for certain benefits, like admission to elite universities. Asian Americans should be wary about their sudden inclusion in this larger group, when they had for so long been denied eligibility for status as citizens and still continue to be given the stereotype of “perpetual foreigner.” Similar to the poor white males of the nineteenth century, the inclusion of Asian Americans could simply be used to maintain the dominance of wealthy white males and to perpetuate a “white image” in elite universities.
Part I of this Note examines the current standard of affirmative action: that the only acceptable justification for race-conscious admissions policies is one of educational diversity. Part II discusses the role of Asian Americans in the affirmative action discussion, with an understanding that Asian Americans have been subject to unrecognized historical discrimination and treated as a “racial bourgeoisie” due to perpetuation of the model minority myth. Part III describes the background and status of SFFA v. Harvard, analyzes the complaint’s arguments, including those made at trial, and criticizes the bases for the complaint. Part IV suggests that the future role of Asian Americans in the affirmative action discussion is one of increased political activeness and unity and argues for a change in the way elite universities value Asian American diversity when assessing applicants in a holistic process.
All racial classifications are subject to strict scrutiny, even where the classification is non-invidious as it is for affirmative action. This requires the means to be “narrowly tailored” to a “compelling government interest.” For affirmative action, Regents of the University of California v. Bakke established that diversity, through its educational benefits, is a compelling state interest under strict scrutiny analysis. Diversity was originally conceived as simply racial diversity; however, Justice Powell’s majority opinion in Bakke advocates for a diversity that goes beyond race to include diversity of ideas, opinions, and backgrounds in order to improve the educational experience. The Court explicitly bans the use of a quota system where race is used as a dispositive factor in admissions, but it permits race to be used as one of many factors in the diversity consideration. There is a clear rejection of race being used as a permissible factor in admissions as a means to remedy past discrimination; instead, the Court focuses on the instrumental justification, which states that race can provide educational benefits by accepting candidates with diverse experiences. Justice Powell specifically cites to Harvard’s admissions policy, which uses race as one of many “plus factors,” in a holistic consideration of an applicant, as a permissible example of a policy that would allow an institution to maintain freedom in its academic goals.
Justice Powell’s opinion in Bakke created the blueprint for the Court in Grutter v. Bollinger to firmly establish that diversity is the only justification for race-conscious admissions policies that would satisfy strict scrutiny. The Court continued to recognize that there were educational benefits from diversity that could satisfy a compelling government interest. Grutter determined that admissions policies seeking to obtain a “critical mass” of diverse students were not a violation of the prohibitions against racial balancing and proportional representation. Critical mass does not refer to a specific quota or percentage, but refers to “meaningful numbers” sufficient to “encourage underrepresented minority students to participate in the classroom and not feel isolated.” The Court gives institutions of higher education deference in deciding whether they need diversity to pursue their educational mission. Once the university determines diversity to be one of its educational goals, a race-conscious admissions policy is permissible only if race is used as merely a “plus factor” in the context of a holistic process that involves individualized consideration. Individualized consideration allows a university to balance academic selectivity with the need for diversity, without sacrificing academic excellence in attempts to achieve race-neutral alternatives. Grutter established that “narrow tailoring . . . require[s] serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks.” However, what this good–faith consideration would require and whether the threshold of critical mass for a university would be given deference were not addressed until Fisher v. University of Texas (Fisher I).
Fisher I established that universities must show that the means used to achieve their diversity interest are narrowly tailored, as the court will not simply defer to the university on this issue. To satisfy the narrowly tailored requirement, a university must show its admissions policy is necessary to achieve the educational benefits of diversity and that no race-neutral alternative is workable. The Court in Fisher I ordered the University of Texas at Austin to show that they had exhausted race-neutral alternatives and reviewed the findings in Fisher II. In Fisher II, the Court determined that the University of Texas at Austin had to show that a critical mass had not already been achieved through its race-neutral Top Ten Percent Plan. However, the University of Texas’s goals did not need to be a precise number because a critical mass of diversity is qualitative, not quantitative. The Court ultimately gave deference to the university’s good–faith efforts to achieve diversity and accepted the argument that the university had not achieved critical mass. Although Fisher I seemed to be arguing that the Court would require proof that there were no workable race-neutral alternatives, the Court in Fisher II seemed to give deference to the university on whether the race-neutral alternatives were good enough, or “workable,” to achieve its diversity goals. This leaves the state of affirmative action in a similar place to where it was in Grutter.
Grutter’s conception of diversity is the current model under which affirmative action is able to fulfill the function of a compelling interest, but this has several limitations. Grutter specifically connects the value of diversity to education, while also inflating the idea of critical mass as something that can be both a quantitatively meaningful number and a means of addressing diversity’s qualitative benefits. It pursues diversity for its instrumental value and rejects any remedial justification, leading to the conception of diversity as one of integration rather than an effort to provide equal opportunity. It does not distinguish “exploitative” from “egalitarian” objectives, which creates an equal opportunity problem—one that will continue to exist so long as there are hindrances unique to minorities that prevent any given admission “spot” from being fungible.
Asian Americans have a complicated history with affirmative action that has developed into a divided stance on the topic within the Asian American community. Adding to this complexity is the difficulty in establishing whether the objective of affirmative action is to seek equality in outcomes for a racial group or equality in opportunity for individual applicants. For Asian Americans, the way in which the purpose of affirmative action is conceived greatly impacts what “side” of the debate feels fair. There is confusion among the Asian American community about what affirmative action actually entails, leading some to misplace blame for what may be “hidden quotas to keep down Asian admissions” on affirmative action policies. The misunderstanding of affirmative action within the Asian American community may stem from several legitimate concerns, involving a combination of an unrecognized history of discrimination in the United States, the role of Asian Americans as a “racial bourgeoisie,” the perpetuation of the model minority myth, negative action policies, and the stereotype of Asian Americans as a “reticent minority.”
Affirmative action was first enacted in a federal program under President Lyndon B. Johnson’s Executive Order 11246 as an “affirmative step” in remedying a history of excluding minority workers, including Asian Americans, from employment in contracting firms that accepted federal funding. In the educational context, affirmative action programs led to significant increases in enrollment for African Americans, Hispanic Americans, and Asian Americans. However, following the decision in Bakke, the growth in enrollment for African Americans and Hispanic Americans stopped and retreats from affirmative action programs swept the country.
The flexible, “holistic” review idealized by the Harvard Plan led to admissions programs that considered race without using strict quotas; some Asian Americans believed that this created an admissions ceiling, as Asian American admissions rates reached a constant plateau.
In the most recent affirmative action decision in Fisher II, a significant number of amicus briefs were filed in support of the University of Texas at Austin’s admissions policy and diversity goals, including some by several Asian American organizations. However, the Asian American Legal Foundation and the Asian American Coalition for Education (claiming to represent 117 Asian American organizations) filed an amicus brief in support of Abigail Fisher, indicating an increasing divide within the Asian American community on the issue of affirmative action.
There is a tendency for the historical discrimination against Asian Americans to go unrecognized due to a perpetuation of the model minority myth. The model minority myth paints Asian Americans as successful, particularly in an educational context, and as immigrants who have achieved the American dream. This conception of Asian Americans is problematic because it creates racial dissonance between Asian Americans and other minorities by implying that the barriers to success do not stem from systematic and structural oppression of some groups, but rather from individuals within a minority group failing to progress. The model minority myth is dangerous because it is used to underscore institutional racism while simultaneously de-emphasizing Asian American success. In addition, Asian Americans are not a monolithic group, and many ethnicities within the Asian American community have different experiences and suffer inequality in income and corporate hierarchies in different ways.
For much of the nineteenth century, Asian Americans were subject to exclusionary immigration laws. Naturalization rights were not granted to people of Asian ancestry until the mid-twentieth century—1943 for Chinese, 1946 for Asian Indians and Filipinos, and 1952 for all other Asians. Even for those born in the United States, the Fourteenth Amendment did not allow citizenship for Asian Americans until 1898, and this was challenged as recently as 1942. Though not to the same extent as African Americans, Asian Americans were affected by segregation laws and anti-miscegenation laws as well. In addition, the Alien Land Laws forbade Asians from owning land by prohibiting “aliens ineligible for citizenship” from owning property. Asian Americans were also subjected to targeted discrimination by all levels of government, from San Francisco’s laundry licensing authority which allowed white laundries to stay open while closing Chinese laundries to the federal government–sanctioned internment of more than 120,000 people of Japanese descent during World War II.
Even though the Supreme Court has, in some instances, struck down laws racially prejudicial against Asian Americans, societal prejudice remains a constant issue. In 1982, two white men in Detroit murdered Vincent Chin, a Chinese-American man, because they thought he was Japanese and were upset over American automakers losing business to the Japanese auto industry. In 1992, the killer of Japanese student Yoshihiro Hattori was acquitted on the basis of “reasonable” self-defense arguments, but the validity of the self-defense claims were based on the jury’s racial prejudice in determining what a reasonable threat was. In some cities, such as Boston and Philadelphia, as recently as the 1990s, Asian Americans suffered the highest per capita hate crime rate of all racial minorities. Today, Asian Americans continue to be the target of discrimination and hate crimes. Racist actions and violence against Asian Americans have seen a disturbing increase recently. These hate crimes tend to be perpetuated by stereotypes of Asian “foreignness” and create fear within the Asian American community that stretches beyond the immediate victims.
University of Hawaii Law Professor Mari Matsuda writes of Asian Americans being a “racial bourgeoisie”:
If white, as it has been historically, is the top of the racial hierarchy in America, and black, historically, is the bottom, will yellow assume the place of the racial middle? The role of the racial middle is a critical one. It can reinforce white supremacy if the middle deludes itself into thinking it can be just like white if it tries hard enough. Conversely, the middle can dismantle white supremacy if it refuses to be the middle, if it refuses to buy into racial hierarchy, and if it refuses to abandon communities of black and brown people, choosing instead to forge alliances with them.
As a racial bourgeoisie, Asian Americans could take on a significant role in the affirmative action discussion. The danger of a racial bourgeoisie is that it places Asian Americans as “middlem[e]n,” too different to be white but not different enough to be “true minorities.” “Racial triangulation” of Asian Americans describes the view in American society that places Asians in a middle ground between whites and African Americans on a level of superiority but on the opposite end of the spectrum from both groups in a level of “foreignness.” This conception of Asian Americans as “perpetual foreigners” means that it is easy to discount them, which allows people to place blame on Asian Americans for acts attributable to actual foreigners.
Part of what enables Asian Americans to be a racial bourgeoisie is the perpetuation of the model minority myth. This conception of Asian Americans as a “model minority” not only unfairly criticizes other minorities, but it also is based on false premises that lead to the diminution of those Asian American individuals who achieve success in the face of great adversity. The dangers of the model minority myth and the conception of Asian Americans as too different to be a true minority are that they create the assumption that Asian Americans cannot face discrimination. However, not only do Asian Americans continue to face racial violence, but they also face negative action in admissions policies. While Asian Americans have benefited and continue to benefit from affirmative action, the creation of ceilings on Asian Americans, particularly in university admissions policies, is a separate, unrelated issue that works to keep Asian Americans in a racial bourgeoisie. No amount of success that is perceived to be enjoyed by Asian Americans through the stereotype of the model minority myth should be used to defend any use of negative action, and while Asian Americans may not merit affirmative action preferences, they should be subject to the same “neutral action” associated with white applicants. A misunderstanding of the distinction between negative action and affirmative action has led many in the Asian American community to use statistics that indicate Asian Americans require higher test scores to get into the same colleges as applicants of other races in order to oppose affirmative action. While there may be legitimate concern over intentional caps against Asian Americans, it should not allow the Asian American community to be confused by the goals and outcomes of affirmative action. It should be the goal of the Asian American community to prevent our own personal experiences from being manipulated into promoting outcomes that ultimately seek to maintain a “white image.”
In the 1920s, people asked: will Harvard still be Harvard with so many Jews? Today we ask: will Harvard still be Harvard with so many Asians? Yale’s student population is 58 percent white and 18 percent Asian. Would it be such a calamity if those numbers were reversed?
SFFA filed an action against Harvard College, alleging the use of racially discriminatory policies in violation of Title VI of the Civil Rights Act of 1964. To successfully challenge Harvard College’s admission policy under Title VI, SFFA must establish discriminatory intent, mirroring the constitutional standard, rather than the disparate impact standard. Although the plaintiff originally argued six counts for relief, the suit ultimately relies on four main reasons that Harvard’s admission policy is racially discriminatory: (1) uses racial “quotas,” (2) “engage[s] in racial balancing,” (3) “fail[s] to use race merely as a ‘plus factor’” in its undergraduate admissions process, and (4) fails to use race-neutral alternatives sufficient to achieve Harvard’s diversity goals. SFFA asserts that it has “at least one member . . . who applied for and was denied admission to Harvard’s 2014 entering class.” This unnamed applicant is described as being Asian American, having parents who are first-generation immigrants from China; graduating with a ranking of one out of 460 students in a high school that U.S. News and World Report places in the top 5 percent in the United States; obtaining a perfect score of 36 on the ACT; and being named an AP Scholar with Distinction, a National Scholar, and a National Merit Scholarship Finalist. In addition to the applicant’s academic achievements, this applicant was
captain of the varsity tennis team, volunteered at a community tennis camp, volunteered for the high school’s student peer tutoring program, was a volunteer fundraiser for National Public Radio, and traveled to China as part of a program organized by the United States Consulate General and Chinese American Students Education and Exchange to assist students in learning English writing and presentation skills.
The Harvard admissions process involves application evaluations by a first reader, a docket chair, and a final review by the full forty-person admissions committee. When first readers review an application, they give numerical scores in the following categories: overall, academic, extracurricular, athletic, personal, teacher recommendations, school support recommendation, staff interview ratings, and alumni interview ratings. The personal rating is based on the admissions officer’s “assessment of the applicant’s ‘humor, sensitivity, grit, leadership, integrity, helpfulness, courage, kindness and many other qualities.’” The overall rating represents the officer’s view of the application as a whole, but instead of being determined “by a formula [or] . . . adding up the other ratings,” the first readers simply take “all the factors into account,” including race. Once the full committee meets and makes its decisions, the dean and director confirm the final target of admitted students and consult a “one-pager” with race, gender, geographic region, and other statistics about the potential new class to determine whether some applicant need to “lopped” from the admitted list.
In 2013, Harvard’s Office of Institutional Research (“OIR”) produced an internal report showing that the admission rate for Asian Americans was highest where the criteria for admission was solely based on academics and progressively decreased the more variables that were added. In OIR’s second report, it found that the only category in which non-legacy, non-athlete white applicants performed significantly better than their similarly situated Asian American applicants was the personal rating, but the report failed to explain why. This second report also found that non-legacy, non-athlete white applicants were admitted at higher rates than non-legacy, non-athlete Asia American applicants with the same academic scores and further concluded that Asian Americans were the only racial group with a negative association between being admitted and their race. In 2015, Harvard established a Committee to Study the Importance of Student Body Diversity, which concluded in its report that student body diversity creates positive impacts and “is fundamental to the effective education of the men and women of Harvard College.” In 2017, Harvard established the Smith Committee, which was dedicated to study whether race-neutral alternatives were workable for achieving the benefits concluded in the 2015 committee. The Smith Committee concluded that there were no workable race-neutral alternatives that would allow Harvard to achieve the benefits of educational diversity without sacrificing other important educational objectives.
An important step in understanding this case requires a closer look into SFFA and its goals. The President of SFFA, Edward Blum, has been instrumental in challenging affirmative action and voting rights laws in more than two dozen lawsuits. He orchestrated Fisher I and II as well as Shelby County v. Holder, which successfully contested the Voting Rights Act of 1965. Blum challenges “racial policies he thinks are unfair” under the names of his several organizations, including SFFA, which have been criticized as being nothing more than Blum’s own “alter ego.” Blum’s work from 2010 to 2015 received $2.9 million from several non-profits and the DonorsTrust, “which distributes money from conservative and libertarian contributors,” leading many to consider Blum a “tool of rich conservatives trying to extinguish efforts to help historically oppressed minorities overcome the long shadow of racism.” Given the background of Blum, it seems likely that the overall goal of SFFA and Blum seems to be to eliminate race-conscious admissions policies altogether, not just negative action against Asian Americans.
Since the complaint was filed in November 2014, future applicants and current students at Harvard petitioned to intervene as defendants but were denied and subsequently given amicus status. The presiding judge, Judge Allison D. Burroughs, determined that each side would have a ten to twelve month discovery process, beginning in May 2015 but denied SFFA’s explicit request for access to Harvard admissions data. The case was temporarily stayed in anticipation of the Supreme Court’s ruling on Fisher II. However, in September 2016, Judge Burroughs ordered that Harvard provide six cycles of admissions data as well as any information relating to any internal or external investigations into allegations of discrimination against Asian Americans in the undergraduate admissions process.
Both sides have filed several motions to seal that have been granted by the Judge Burroughs, thus limiting the amount of evidence that is available to the public at this time. Harvard filed a motion to dismiss for lack of subject matter jurisdiction in September 2016 that was denied in June 2017. However, in June 2017, Judge Burroughs did grant Harvard’s motion for partial judgment on the pleadings of Count IV and VI, which respectively claimed violations based on Harvard’s failure to use race to merely fill the “last few spots” in an incoming class and “any use of race as a factor in admissions.”
In September 2017, the Department of Justice (“DOJ”) formally notified Harvard that it was under investigation for its use of race in its admissions policies. The DOJ’s Civil Rights Division sent a letter to Harvard on November 17, 2017, stating that Harvard was “not complying with its Title VI access requirements,” and if Harvard failed to provide the requested documents by December 1, 2018, the agency might file a lawsuit against the university. Harvard challenged the agency’s authority to investigate and was willing to “provide the Justice Department with documents produced for the federal court case, ‘with redactions for relevance, privacy, and privilege/work product protection.’” The core of the investigation was related to the same issues argued in the SFFA v. Harvard complaint. In 2015, the Obama administration dismissed the request to investigate without evaluating the merits due to the parallel lawsuit; however, in 2017, the Trump administration pursued the investigation, creating skepticism about the party divide and political motivations plaguing affirmative action policies. In August 2018, the DOJ offered SFFA a public show of support through its statement of interest in court. The DOJ did not make any conclusions of illegality, but it did urge the court to deny Harvard’s request for summary judgment. From October to November 2018, Judge Burroughs heard oral arguments on the four remaining Counts, namely I, II, III, and V, from both SFFA and Harvard. During the trial, there was a large reliance on student anecdotes and expert testimony, with SFFA using Peter S. Arcidiacono, an economics professor from Duke University, and Richard D. Kahlenberg, a senior fellow at the Century Foundation, and Harvard primarily relying on David E. Card, an economics professor from UC Berkeley. In closing arguments, SFFA highlighted the expert testimony to demonstrate a “statistically significant Asian penalty,” while Harvard countered that SFFA had failed to prove any bias against Asian Americans but was instead a tool to take down “decades-old efforts toward racial diversity that enhances the educational experience.” Although Judge Burroughs’s “decision doesn’t have a definitive timeline,” she is expected to release it in early 2019, and the decision is likely to be “appealed by the losing side.” While a ruling at the district court in favor of SFFA would likely not eliminate the possibility of race-conscious admissions altogether, it could force Harvard, and other elite universities, to create policies that limit the consideration of race. It is quite possible the case could reach the Supreme Court of the United States, where the environment is drastically different from what it was when Fisher II was decided in 2016 given Justice Kennedy’s swing vote has been replaced by Justice Kavanaugh and the presidential administration’s view of affirmative action has shifted.
SFFA makes several arguments describing why Harvard’s admissions policies are intentionally discriminatory on the basis of race and ethnicity in violation of Title VI. SFFA and Harvard filed a joint statement asking “that the requirement for a trial brief be stricken” based on their extensive summary judgment filings and since SFFA’s motion for summary judgment was solely based on Counts I, II, III, and V of the complaint, which ultimately formed the basis of SFFA’s arguments at trial. First, SFFA argues that Harvard’s holistic review process is historically discriminatory and is now being used to intentionally discriminate against Asian Americans. Second, SFFA contends that Harvard is engaged in racial balancing based on evidence of stable admission percentages across races even as the application rates change over time. Third, SFFA claims that Harvard’s pursuit of critical mass does not adhere to the Harvard Plan that was idealized in Bakke because it considers race as more than just a “plus factor.” SFFA argues that critical mass is an amorphous term that creates a delusion of pursuing diversity when it is really used “to achieve numerical goals indistinguishable from quotas” and results in race being used as more than just a plus factor. Fourth, SFFA argues that Harvard’s race-conscious admissions policy is not narrowly tailored because there are race-neutral alternatives that could be used to achieve diversity based on policies used by other elite universities.
In the first argument, SFFA contends that Harvard’s admissions policies were historically developed for “the specific purpose of discriminating against disfavored minority groups.” SFFA points to the 1920s and 1930s when then Harvard President A. Lawrence Lowell placed a cap on Jewish enrollment through the use of an admissions system that was based on discretion rather than academic achievement. Harvard began using legacy preferences and a subjective admissions system gauging “character and fitness and the promise of the greatest usefulness in the future as a result of a Harvard education” as strategies to reduce the number of Jewish students admitted.
SFFA argues that Harvard’s current admissions plan uses the same subjective system to consider “race or ethnicity itself—not other factors that may be associated with race or ethnicity—[as] a distinguishing characteristic that warrants consideration in the admissions process” in order to create a quota of African American students. SFFA goes on to claim that Harvard has a long history of intentional discrimination against Asian Americans, ranging from refusing to recognize Asian Americans as a minority by describing them as “over-represented” to holding Asian Americans to a higher standard of admissions. In July 1988, the Office of Civil Rights of the U.S. Department of Education investigated the treatment of Asian American applicants at Harvard in comparison to white applicants and found that while Asian American applicants were accepted at a significantly lower rate than “similarly qualified” white applicants, the disparity was attributed to legacy preferences, not the byproduct of racial discrimination as claimed by SFFA. SFFA continues by referencing the Espenshade–Radford study on the role of race in elite undergraduate admissions, which found that “Asian–American students were dramatically less likely to be admitted than otherwise similar students who identified themselves as white or Caucasian.” SFFA also cites to Ron Unz’s study which found “sheer constancy of [Asian American enrollment] percentages, with almost every year from 1995-2011 showing an Asian enrollment within a single point of the 16.5 percent average, despite high fluctuations in the numbers of applications and the inevitable uncertainty surrounding which students will accept admission,” and this “exactly replicates the historical pattern . . . in which Jewish enrollment rose very rapidly, leading to the imposition of an informal quota system, after which the numbers fell substantially, and thereafter remained constant for decades.” SFFA then cites to studies indicating that elite schools with race-neutral admissions policies have higher Asian American enrollment, with a table comparing Asian American enrollment at Harvard and the California Institute of Technology. The complaint also refers to personal anecdotes of admission staff at Harvard and other elite universities, college counselors, and Asian American applicants, describing how “Asian Americans face difficulty because they cannot distinguish themselves within their community.”
During the trial, each party relied on its own expert reports “to show the presence or absence of a negative effect of being Asian American on the likelihood of admission, highlight[ed] the purported flaws of its opponent’s statistical analysis, and claim[ed] that there is substantial—or zero—documentary and testimonial evidence of discriminatory intent.” SFFA specifically relied on Arcidiacono’s testimony which concluded that Harvard gave lower personal ratings to Asian Americans at every level of academic achievement than applicants of all other racial groups and further showed that among applicants with the same overall rating, Asian Americans were the least likely to be admitted. However, Harvard’s expert, Card, reviewed the same admissions data but found “no negative effect of being Asian American on the likelihood of admission to Harvard” because disparities were due to Asian American applications being “slightly less strong than those submitted by White applicants across a range of observable non-academic measures.” Arcidiacono and Card reach different results from the same data due to divergent modeling choices, with Card criticizing Arcidiacono for excluding certain applicant information. SFFA also uses the Harvard OIR reports to indicate that Harvard’s own internal research division found results consistent with Arcidiacono then took no further steps to investigate the potential bias, but Harvard claims that Card’s more comprehensive and reliable study contradicts the OIR report. Lastly, SFFA uses personal anecdotes, specifically from an OIR employee and alumni interviewers, to demonstrate discriminatory intent, but Harvard asserts that statements made by non-decisionmakers or decisionmakers not involved in the process are insufficient to demonstrate discriminatory animus.
In the second argument, SFFA contends that Harvard’s current admissions policy engages in “racial balancing” in order to ensure a fixed quota of Asian American enrollees or proportional representation in its student body. SFFA points to statistical data indicating that the racial demographics of Harvard’s admissions and enrollment have remained stable over approximately the last decade, despite fluctuations in application rates. SFFA contends the following:
[B]etween 2003 and 2012, the percentage of Asian Americans at Harvard wavered only slightly above and below approximately 17 percent. . . . [D]espite the fact that, by 2008, Asian Americans made up over 27 percent of Harvard’s applicant pool, and approximately 46 percent of applicants with academic credentials in the range from which Harvard admits the overwhelming majority of students.
SFFA points to the “one-pagers” that provide statistics of the present representation of various racial groups as compared to the prior year as proof of Harvard’s quota for Asian Americans. SFFA alleges that Harvard reconsiders applications from particular groups after receiving the one-pager in order to align the current class demographics with the prior year, which would effectively create a cap on Asian American enrollment regardless of the application rate or level of qualifications. In the “lopping” process, the admissions committee allegedly takes into account the applicant’s race and whether it is currently underrepresented in the prospective class. Harvard contends that the one-pagers break down applicants not only by race but also by gender, geography, intended concentration, legacy status, socioeconomic status, and other categories. Harvard argues that the lopping process is an unbiased, necessary part of a process that involves an “overabundance of qualified applicants” for a limited availability of spots. While SFFA points to a somewhat consistent admitted class breakdown for each racial group to show racial quotas, Harvard counters by claiming that there was a significant 11% increase in Asian American enrollment when it went from 18% (Class of 2014) to 20% (Class of 2017).
In its third argument, SFFA claims that Harvard is not considering race for the purpose of achieving “critical mass” because it considers race as more than just a “plus factor.” Although the Supreme Court gives deference to a university in determining if diversity is part of their educational goals and deference in determining if critical mass has already been achieved, SFFA argues that Harvard’s admissions policy fails in its methods for attaining educational diversity because they are not narrowly tailored to a goal of reaching critical mass. In addition, SFFA argues that since Harvard is not pursuing a goal of critical mass, the race-conscious admissions could be used in perpetuity even though there may be some point in time where the “use of racial preferences will no longer be necessary to further the interest” in diversity. Harvard has an obligation to “continually reassess its need for race-conscious review,” but Harvard claims that the Smith Committee evaluated the current need for race-conscious admissions and a re-evaluation would be done again five years after the Smith Committee issued its report.
SFFA argues that Harvard uses race as more than just a “plus factor.” However, Harvard counters with testimony from Card stating that the variability in admissions is better explained by an “applicant’s academic, athletic, extracurricular, and personal ratings,” rather than race. Similar to the arguments for Count I, the outcome of this issue is heavily dependent on which expert is given greater credibility and the reliability of the anecdotal testimony of admissions office employees.
In its last argument, SFFA offers race-neutral alternatives that Harvard could use to achieve student body diversity. SFFA argues that Harvard should implement an admissions policy that creates diversity by placing emphasis on socioeconomic factors, including parental education and wealth, which are not specifically tied to race even though they may be strongly correlated. In addition, SFFA proposes that Harvard use financial aid and scholarships for socioeconomically disadvantaged students to incentivize minority enrollment. SFFA suggests that increasing recruitment into the applicant pool for “highly qualified, socioeconomically disadvantaged minorities” would lead to an increase in student body diversity and be sufficient to achieve Harvard’s educational goals. SFFA contends that the need for race-conscious policies would not be necessary if other admissions policies that explicitly disadvantage minority applicants, such as legacy and wealthy donor preferences, were eliminated. SFFA uses testimony from their expert Kahlenberg to support that Harvard “can easily achieve diversity” by race-neutral policies, such as “increasing socioeconomic preferences; increasing financial aid;” and reducing legacy and donor preferences. In response, Harvard asserts that the Smith Committee satisfied strict scrutiny when it determined that there were no available race-neutral alternatives. Lastly, SFFA argues that Harvard has not considered race-neutral alternatives in good faith because the Smith Committee was developed after they became aware of the imminence of a lawsuit.
The complaint, as previously discussed, lays out four main arguments: (1) intentional discrimination; (2) racial balancing; (3) not using race as merely a plus factor; and (4) the existence of race-neutral alternatives. First, the argument surrounding the racial quota is flawed because SFFA uses evidence of a quota against Jewish Americans in the 1920s as an indication of a discriminatory intent currently in place against Asian Americans. The existence of a past discriminatory intent in the creation of the policies affecting Jewish applicants in the 1920s does not prevent Harvard from claiming to have benign intentions in the use of its policies now. Since the discriminatory impact is not so severe as to allow a presumption of discriminatory intent as in Yick Wo, in which all permit applications by Chinese owners to set up a laundry business were denied, SFFA would be required to show that constant admission rates of Asian Americans are due to a discriminatory intent to have an upper limit of Asian Americans at Harvard. Because SFFA’s proof is heavily reliant on the court finding its expert’s method of statistical analysis to be more compelling, it will be difficult to show that Arcidiacono’s conclusions are enough to prove discriminatory intent. Even if a racial quota is found to exist, it would only prove that Harvard itself is participating in an impermissible form of discrimination through the use of quotas against Asian Americans; that finding would not invalidate affirmative action in all higher education admissions or prevent the consideration of race in admissions policies elsewhere. SFFA’s use of statistics, such as those from the Espenshade–Radford study, to support the existence of this racial quota falsely manipulates the data to conflate the negative action experienced by Asian Americans with affirmative action. In fact, an upper limit quota on Asian Americans is more likely to benefit white applicants than any minority applicants. While the assertion of an upper limit quota against Asian Americans is highly possible given the constant admission rates of Asian Americans, it would not be due to affirmative action. Rather, it would be due to a combination of efforts to maintain a “white image” at elite universities, enflamed by the use of legacy preferences and the devaluation of Asian American diversity.
Second, SFFA’s argument that Harvard is conducting racial balancing in its admissions policy based on the same stable admission percentages used to indicate the racial quota in the first argument is flawed because diversity itself gains value from balance. Although critical mass is an immeasurable number, its definition inherently requires that it be attached to some ideal balance. While this balance should not solely be based on race, race does play a factor in contributing to the educational benefits of diversity, such that critical mass could definitely not be achieved if an elite university were made up entirely of one race. Any university that limits its number of accepted applicants requires a balance of diversity because not all qualified candidates can be accepted, so to claim there is impermissible racial balancing would be to argue that admissions policies instead need to be attached to something more quantitative like proportionate representation or application rates. The Supreme Court has not found this to be necessary given that Fisher II gave deference to universities in determining whether their admissions policies were narrowly tailored to achieving diversity. Unless there is evidence that Asian Americans are being “lopped” based on the one-pagers and a desire to create a racial demographic that is the same year after year, it will be difficult to show that Harvard is partaking in impermissible racial balancing. However, the balance universities achieve through their admissions policies should be subject to some scrutiny. While a balance may be inherently necessary, the conception of over-representation can lead to an unfair suppression of some groups in the consideration of this balance. The conception of over-representation is an issue because it leads to the idea that there can be too many of a certain group. While this may be true if the goal is to create a diverse class of individuals, it should be questioned when over-representation is only attached to minority groups. Ultimately, there is distrust that SFFA would be welcoming to an outcome that eliminated racial balancing entirely if it meant that Harvard only accepted Asian Americans.
Third, SFFA contends that Harvard does not use race as merely a plus factor because its consideration of race in admissions is not for the purpose of achieving critical mass. While Harvard’s creation of the Smith Committee seems correlated to the filing of the lawsuit, there is no indication that Harvard does not intend to follow its recommendation to re-evaluate in five years, which would be compliant with Fisher II’s mandate to continue reassessing critical mass. Harvard’s admissions policy is to consider race as one factor among many, and almost all of the categories it creates ratings for do not allow the officers to consider race in their scores. While it is misguided for SFFA to challenge the consideration of race in Harvard’s policies as the exist on paper, there should be scrutiny placed on whether admissions officers allow unconscious bias and stereotypes about Asian Americans to influence the ratings of the other categories. When personal ratings of Asian American applicants are consistently lower than white applicants, it should lead to questions about whether admissions officers are more likely to undervalue humor, leadership, courage, and other traits that the personal ratings are based on when they are attached to an Asian American.
Fourth, SFFA suggests that Harvard could achieve diversity through race-neutral alternatives, such as socioeconomic status. Although socioeconomic disadvantage and race may overlap, they do not target identical problems, and thus, the consideration of race should not be completely replaced by solely considering socioeconomic status. They are both to be considered in the admissions process, among a multitude of other diversity factors. The Court in Fisher II allowed universities to use race-conscious admissions where there are no workable race-neutral alternatives that would sufficiently achieve their goals for educational diversity, so Harvard would not be required, under the current law, to adopt an inadequate socioeconomic status-based alternative. Admissions policies based on socioeconomic status may also be offered as a subtle way to assist race and gender–based affirmative action, but they should not be considered as a cure-all in college admissions.
SFFA’s arguments are flawed due to their susceptibility to logical fallacies, such as the “causation fallacy” and the “average-test-score-of-admitted-students” fallacy. The causation fallacy is a term coined by California Supreme Court Justice Goodwin Liu to describe when “the fallacy erroneously conflates the magnitude of affirmative action’s instrumental benefit to minority applicants, which is large, with the magnitude of its instrumental cost to white applicants, which is small.” For unsuccessful applicants, there is a reflex to blame affirmative action, but in a selection process as rigorous as the ones at elite universities, the likelihood of success for any candidate is low, regardless of affirmative action. Because white applicants greatly outnumber minority applicants and a large number of factors are considered, the average white applicant is not significantly more likely to be selected under a race-neutral process than a race-conscious one. Although there are racial gaps in test scores, it is not evidence that affirmative action creates discriminatory acceptance rates, given that non-objective factors also play a role in admissions. The causation fallacy leads to “a distortion of statistical truth, premised on an error in logic. . . . But that fact provides no logical basis to infer that white applicants would stand a much better chance of admission in the absence of affirmative action.” Therefore, any presence of a racial quota or ceiling against Asian American admission cannot be due to affirmative action because the number of spots is too few to account for a constant admission rate despite increased application rates.
The average-test-score-of-admitted-students fallacy is employed by SFFA in its argument that blames affirmative action for statistics showing Asian Americans need to score higher on standardized tests in order to be accepted. Because academic merits are only one factor of many in a holistic admissions process, “it is incorrect to infer Asian American applicants are required to meet a higher test standard even if the group average SAT score of all admitted Asian American students to a given university is higher than the SAT score of all African American admitted students.” This is because SAT scores are not the only basis for admission to universities, and even though the group average SAT score of all admitted Asian American students to a university may be higher than all other groups, their group average non-academic scores may be collectively lower. While this explains why average test scores of Asian Americans may be higher at no fault of affirmative action, it also raises the question of whether Asian Americans’ non-academic qualities are being undervalued as a result of negative action and harmful stereotypes. However, it would be a mistake to want an admissions process that solely relies on academic criteria because scholastic ability, on its own, does not determine beneficial contribution to an elite university, and it has been shown that standardized tests are not racially neutral determinants of merit. Both of these logical fallacies are employed in SFFA’s complaint and are used to appeal to the Asian American community as a way to manipulate blame for discriminatory ceilings against Asian Americans to create support for eliminating affirmative action.
The use of an unnamed Asian American plaintiff and any possible evidence of an upper limit quota against Asian Americans should not bring into question whether diversity is a compelling interest. However, the conception of what this diversity should look like does need to change. There is a fear in the affirmative action discussion that any criticism of current race-conscious policies could be seen as an attack on affirmative action. That should not be the case; while affirmative action creates necessary benefits, it can also be improved.
The conception of diversity needs to evolve past even the idea of intra-racial diversity that was introduced in Fisher II. Diversity needs to be more than just having diversity within racial groups; the discussion needs to shift toward why diverse characteristics become more valuable when attributed to one race over another. When holistic admissions policies allow negative stereotypes about a group to bias their conception of diversity, the true educational benefits of a diverse student body cannot be achieved.
There is a concern that an admissions process that uses racial preferences as a means of enhancing educational diversity may stereotype applicants by race, expressing illegitimate assumptions about applicants’ viewpoints and experiences. For Asian Americans, these stereotypes are harmful and can help explain any potential ceilings. Even when the stereotypes are deemed “positive,” such as the model minority myth, there can be a negative effect. While these “positive” stereotypes may help Asian Americans break into the workforce, these same stereotypes may also prevent them from advancing upward through management. This leads to data that may show “many Asian Americans are ‘underemployed’ relative to their educational background,” creating an assumption within the Asian American community “that a fact of American life is that their efforts and accomplishments are discounted.”
When the stereotypes are negative, there is an even greater impact. Negative stereotypes can lead to “admissions committees [concluding] unfairly that [Asian American] applicants were not well-balanced individuals.” This stereotype that Asian Americans are one-dimensional fails to value the diversity associated with Asian Americans. This creates two main issues. First, while there is value in providing a characteristic that is unusual for your race because you have a unique experience, this does not account for why those same characteristics are valued differently across races, even where they create intraracial diversity equally. For white or other minority applicants, the value of being a concert pianist or a chess player is seen as positive, while for an Asian American, it may be seen as negative because it does not distinguish the Asian American applicant from his or her perceived societal stereotype. While there is a large value to be placed on intraracial diversity and interracial diversity, it is important to question whether there are any equivalent stereotypes that hold back white applicants. Second, there is an additional failure to even recognize the intraracial diversity that already exists among Asian Americans. Asian Americans have diverse cultural backgrounds and experiences that are undervalued when they are viewed as a monolithic group. There would be great intraracial diversity between two Asian American applicants, even if both have the same SAT scores and extracurricular activities, if one was the child of Vietnamese immigrants who came as refugees after the Vietnam War, and the other was the child of second–generation Punjabi Americans. To place less value on these distinct cultural experiences than would be placed on the diversity of “a farm boy from Idaho” is illogical. When admissions officers reward candidates who “appear less Asian” or when professional admissions consultants recommend Asian Americans not talk about their immigrant backgrounds to avoid discrimination, it should raise the question of whether there is a devaluation of the Asian American identity in admissions policies.
The diversity of Asian Americans is also devalued through the perception of Asian Americans as over-represented in education. The idea of over-representation itself creates the presumption that Asian Americans are not subjected to discrimination in admissions policies, which is not the case. When schools are identified as being “too Asian,” the diversity of Asian Americans is reduced to an assumption that all Asian Americans are the same and are not valued as individuals who provide a unique benefit to a university. The comments crying “yellow peril” are not said in hushed tones or with backlash of racism, but are viewed as commonplace. The claim of “too Asian” stems out of a fear of universities losing their “white image” due to competition with Asians. With the combination of feeling over-represented while also being asked to “appear less Asian,” the effect has resulted in Asian Americans internalizing these beliefs and a lack of self-identity. For elite universities looking to gain the educational benefits of diversity, creating admissions policies that value the broad range of Asian American experiences is necessary.
Asian Americans are traditionally viewed as a “reticent minority” because in comparison to other ethnic groups, they tend to be less politically active and vocal. There has been a recent increase in Asian American political activity, particularly in affirmative action, which is necessary and important. However, it is crucial that Asian Americans not fall victim to a “race to the bottom” mentality by attacking other minority groups in a competition of who is worse off. In considering affirmative action, Asian Americans should work with other minorities in discussing with universities “what the institutional and minority needs and priorities are.” When Asian Americans criticize affirmative action, they must first ask themselves (1) even if you are “individually innocent of any racial discrimination” and face it yourself, do you not benefit from it? and (2) would you trade your Asian American experience to participate in the “piecemeal remedy of affirmative action programs?” While the unsuccessful candidate may feel that there are painful costs to affirmative action, Asian Americans should be protesting negative action based on the perpetuation of harmful stereotypes, rather than affirmative action, which continues to benefit Asian Americans. As a racial bourgeoisie, Asian Americans have not been included in affirmative action discussions, and they are caught between societal beliefs that they are receiving preferential treatment and personal feelings of experiencing discrimination.
After Fisher II, diversity is the only justification accepted by the Supreme Court as a compelling interest for universities’ admissions policies to satisfy strict scrutiny, and although the Court claimed to require the university to show no race-neutral alternatives, it ultimately gave deference to the university’s good faith in determining whether the race-neutral alternatives would be plausible in achieving the educational benefits of diversity. The historical discrimination of Asian Americans and their existence as a group too different to be white and not different enough to be a “true minority” give context to why there is frustration and misunderstanding over affirmative action in the Asian American community. Although the negative repercussions of these circumstances and the stereotypes they come with are harmful to Asian Americans, they are not the result of affirmative action and would not be remedied by an elimination of affirmative action. SFFA’s complaint and the arguments it made at trial against Harvard rest on misconceptions of the Asian American experience in the admissions processes. In its effort to get rid of race-conscious admissions programs, SFFA falls victim to logical fallacies and fails to address the true problem facing Asian Americans in admissions. While diversity continues to be a compelling interest, the conception of what types of diversity are valued needs to be re-evaluated to consider the stereotypes attributed to Asian Americans. For the Asian American community, their position as a racial bourgeoisie can have a significant impact in the affirmative action discussion if Asian Americans can target their efforts at attacking negative action while simultaneously supporting affirmative action.
[*] *.. Senior Editor, Southern California Law Review, Volume 92; J.D. Candidate, 2019, University of Southern California Gould School of Law; B.A., Economics and Legal Studies 2015, University of California, Berkeley. I greatly appreciate Professor Stephen Rich for his guidance and the editors of the Southern California Law Review for their excellent work. Thank you to my family—Mom, Dad, Jen, Andy, and Matt—and to my friends for their endless support and constant willingness to listen to me talk about this Note.
. Wesley Yang, Paper Tigers: What Happens to All the Asian-American Overachievers When the Test-Taking Ends?, N.Y. Mag. (May 8, 2011), http://nymag.com/news/features/asian-americans-2011-5 (expressing the author’s perspective on the Asian American experience). This puts into context the complexity of the role that Asian Americans play not only in the affirmative action discussion, but also in American society as a whole. When the stereotype that attaches to Asian Americans is that they are all the same, what value can be placed on an individual Asian American’s conception of self?
. Some of the experiences my maternal grandparents faced in the Japanese American internment camps are also discussed in an article published by USC Gould School of Law. See 75 Years Later: The Impact of Executive Order 9066, USC Gould School of Law (Feb. 16, 2017), https://gould.usc.edu
. This is not to diminish the experience of those applicants who have to check “Other” because the ethnicity or culture they identify with is not listed, which is a separate but serious issue as well. This is to highlight the feeling of being told that your chances of admission would be greater if the university does not know you are Asian American, indicating Asian Americans get deducted points in comparison to even white applicants. It is not a comforting notion when many applicants of Asian-American descent have first or last names that reveal their identity regardless of what ethnicity they mark on their application.
The description of my experience applying to colleges is not to insinuate that I should have been accepted to a specific university based upon my qualifications. The qualifications I describe are those of a typical applicant, whereas the suggestion of checking the “Other” box is a less universal experience. It is part of what helps me to understand the frustrations felt by many in the Asian-American community who are pushing back against Harvard’s admissions policies.
. The concept of a “racial bourgeoisie” was coined by Mari Matsuda. Mari J. Matsuda, We Will not be Used: Are Asian Americans the Racial Bourgeoisie?, in Where Is Your Body? And Other Essays on Race, Gender, and the Law 149, 149–50 (1996). It refers to an idea that Asian Americans fall into a racial middle ground that acts as a buffer between whites and African Americans, with Asian Americans stuck being too privileged to be minorities and too foreign to be honorary whites. Id.
. Complaint at 100–01, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. Nov. 17, 2014), 2014 WL 6241935. This Note is limited in scope and does not discuss whether the Supreme Court is likely to hear this case or any likely outcome. This Note is limited to critiquing the arguments set out in Students for Fair Admissions’ (“SFFA’s”) complaint that were argued during the trial, which concluded in November 2018, trying to create background on why the Asian American community may be divided on this issue, and making a suggestion for the future of affirmative action as the discussion begins to include Asian Americans. See Chloe Foussianes, A Timeline of the Harvard Affirmative Action Lawsuit, Town & Country (Nov. 2, 2018), https://www.townandcountrymag.com/society/money-and-power/a24561452/harvard-lawsuit-affirmative-action-timeline.
. SFFA is a “newly-formed, nonprofit, membership organization whose members include highly qualified students recently denied admission to [Harvard and the University of North Carolina at Chapel Hill], highly qualified students who plan to apply to both schools, and parents.” Project on Fair Representation Announces Lawsuits Challenging Admissions Policies at Harvard Univ. and Univ. of North Carolina-Chapel Hill, Students for Fair Admissions, https://studentsforfairadmissions.org
/project-on-fair-representation-announces-lawsuits-challenging-admissions-policies-at-harvard-univ-and-univ-of-north-carolina-chapel-hill (last visited Jan. 21, 2019). The president of Students for Fair Admissions is Edward Blum, who is also the president of the Project on Fair Representation, which was founded in 2005 “to support litigation that challenges racial and ethnic classifications and preferences.” About Us, Project on Fair Representation, https://www.projectonfairrepresentation.org/about (last visited Jan. 21, 2019). The Project on Fair Representation has been involved in admissions lawsuits with other universities, including Fisher v. University of Texas at Austin. Brittany N. Ellis, The Harvard Admissions Lawsuit, Explained, Harv. Crimson (Nov. 7, 2016), http://www.thecrimson.com/article
. Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2227 n.4 (2016) (Fisher II) (Alito, J., dissenting) (“The majority’s assertion that UT’s race-based policy does not discriminate against Asian-American students . . . defies the laws of mathematics. UT’s program is clearly designed to increase the number of African-American and Hispanic students by giving them an admissions boost vis-à-vis other applicants.”).
. I acknowledge that the term “Asian American” encompasses many different cultures and experiences, adding to some of the problems of Asian Americans being viewed as a monolithic group. However, the use of terms such as “Asian Americans,” “African Americans,” and “Hispanic Americans” is not intended to describe the experience of all individuals within such “groups,” but as a way to discuss the larger-scale issues surrounding affirmative action within the context of SFFA v. Harvard. The terms “Asian Americans,” “African Americans,” and “Hispanic Americans” were chosen based on how college admissions categorize ethnicity. See Admissions Statistics, Harvard C., https://college.harvard.edu
/admissions/admissions-statistics. The discussion of stereotypes in this Note is used solely to acknowledge their negative impact and not to recognize them as truth, and while stereotypes in any context may be harmful, it may be necessary to discuss them in order to understand our own internal biases.
. See Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 212–17 (1999). In order to maintain dominance and power, wealthy white males recognized they would need to expand the civic identity to include poor white males. Id. By creating a dissonance between poor whites and minority groups, wealthy white males were able to maintain their power in the political system. Id.
. See id. at 197–242 (describing American ascriptivism). Smith offers a theory that the American political system developed with influence from an ascriptive tradition based on racist, sexist, and nativist assumptions that only allowed certain individuals to take part in the American civic identity. Id.
SFFA’s complaint may be a reaction to the egalitarian civic reforms over the last few decades, showing that democratic principles have failed to create a shared sense of “peoplehood” and instead left people desiring for a return to some “superior culture” of the past. For Asian Americans to become included in those SFFA deem worthy enough to have earned their spots at Harvard, it comes at the cost of perpetuating stereotypes such as the model-minority myth, which are ultimately harmful to the Asian American community. SFFA may be willing to include Asian Americans in higher education, but does this inclusion also apply where it does not benefit the white community?
. Throughout this Note, the terms “minority” and “white” were chosen to label groups in the admissions process as opposed to terms like “preferred” and “non-preferred” applicants or any other potential distinction. This is not to say that the admissions experience of all white applicants or all minority applicants is the same.
. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). Strict scrutiny is the most stringent form of judicial review courts use in determining the constitutionality of laws. To pass strict scrutiny, the law must be “narrowly tailored” to achieve a “compelling state interest.” Id. Racial classifications are subject to strict scrutiny, and even where there is non-invidious motive, such as the case for affirmative action, strict scrutiny still applies. See Korematsu v. United States, 323 U.S. 214, 216–24 (1944) (representing the first official use of strict scrutiny for racial classifications, though the Court’s finding that the law was narrowly tailored to a compelling state interest of national security has been criticized for being based on unfounded data provided by the state and was expressly overruled in Trump v. Hawaii, 138 S. Ct. 2392, 2423 (2018)); Adarand, 515 U.S. at 227.
. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311–14 (1978). Justice Douglas’s dissenting opinion in Defunis v. Odegaard, 416 U.S. 312, 321–44 (1974), in which he argued that courts should give deference to educators in admissions policies, set the stage for Justice Powell’s opinion in Bakke. See Bakke, 438 U.S. at 311–14. The extent to which diversity would be able to apply as a compelling government interest to other areas outside of public education is uncertain. Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.”).
. Bakke, 438 U.S. at 323.
A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.
. Id. at 310, 315–17. A quota system using proportional representation to remedy a historical deficit was considered unconstitutional because racial balancing is unequal on its face. Acting as a counter-effect to societal discrimination is a valid reason, but it is not narrowly tailored enough to justify the unfairness to an “innocent” applicant. Id. at 308–09.
. Id. at 316–18. “As the Harvard plan described by Justice Powell recognized, there is of course ‘some relationship between numbers and achieving the benefits to be derived from a diverse student body, and between numbers and providing a reasonable environment for those students admitted.’” Grutter, 539 U.S. at 336 (citing Bakke, 438 U.S. at 323).
. Grutter, 539 U.S. at 325. (“[W]e endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”).
. Id. at 328. Educational benefits of diversity include cross-racial understanding helping to break down racial stereotypes, livelier classroom discussion, better preparation for a diverse workforce and marketplace, and the creation of a military officer corps better suited to properly provide national security. Id. at 330–33. In Grutter, much of the support for the University of Michigan Law School’s compelling interest claim was “bolstered by its amici, who point to the educational benefits that flow from student body diversity.” Id. at 330.
The Court cites to Plyler v. Doe, 457 U.S. 202, 221 (1982) and Brown v. Board of Education, 347 U.S. 483, 493 (1954) in acknowledging the Court’s emphasis on education as fundamental in “sustaining our political and cultural heritage” as well as the “foundation of good citizenship.” Grutter, 539 U.S. at 331. However, the Court fails to address the anti-subordination values of Plyler and Brown and simply focuses on the instrumental values of allowing an educational institution to create a policy that promotes a goal of diversity.
. Grutter, 539 U.S. at 330–33.
. Id. at 340.
. Id. at 318.
. Id. at 328.
The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer. . . . Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university’s academic decisions, within constitutionally prescribed limits.
This deference only applies to the question of whether the specific institution finds diversity to be part of its own interest, not whether diversity itself is a compelling interest. This deference also does not apply to whether the means chosen to obtain the diversity are narrowly tailored.
. Id. at 337–38.
. Id. at 339 (“Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups.”).
. Id. The Supreme Court reasoned that the district court’s criticism of the law school for failing to consider race-neutral alternatives such as “using a lottery system” or de-emphasizing the importance of GPA and LSAT scores for all applicants was unfounded because “these alternatives would require a dramatic sacrifice of diversity, the academic quality of all admitted students, or both.” Id. at 339–40.
. Fisher v. Univ. of Tex. at Austin, 570 U.S. 297 (2013) (Fisher I); Fisher v. University of Tex. at Austin, 136 S. Ct. 2198 (2016) (Fisher II). In Fisher I, after being denied admission to the University of Texas at Austin, Abigail Fisher challenged the university’s admissions policy. Fisher I, 570 U.S. at 306–07. She did not qualify for the university’s Top Ten Percent Plan, which guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 304–05. For the remaining spots, the university’s admissions policy considered several factors, with race being one of them. Id. Fisher I centered around Abigail Fisher’s challenge of University of Texas’s use of race-conscious admissions as a violation of the Equal Protection Clause of the Fourteenth Amendment. Id. The Supreme Court in Fisher I held that the appellate court erred by not properly applying the strict scrutiny standard because narrow tailoring requires a showing that no race-neutral alternative was available and remanded the matter. Id. at 311–15. Fisher II then determined the constitutionality of the admissions policy based on the findings from the university on what race-neutral alternatives were plausible. Fisher II, 136 S. Ct. at 2198.
. Fisher I, 570 U.S. at 312 (“Although ‘[n]arrow tailoring does not require exhaustion of every conceivable race-neutral alternative,’ strict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives.’” (citing Grutter, 539 U.S. at 339–40)).
. Id. (“The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity.”).
. Fisher I, 570 U.S. at 314–15 (“[A] university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity . . . . and the case is remanded for further proceedings consistent with this opinion.”); Fisher II, 136 S. Ct. at 2208 (“Fisher I set forth these controlling principles, while taking no position on the constitutionality of the admissions program at issue in this case.”).
. Fisher II, 136 S. Ct. at 2211–12 (“[A] university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.”). As discussed in supra note 30, the University of Texas’s Top Ten Percent Plan (the “Plan”) guaranteed admission to the top 10 percent of every in-state, high school graduating class. Id. at 2205–06. The Plan was introduced by the University of Texas at Austin as a way to improve intra-racial diversity by increasing the amount of diversity within racial groups. Id. The Plan hoped to achieve this by accepting the top 10 percent from every Texas high school given the understanding that the racial and socioeconomic makeup of each school district may not already be diverse. Id.
. See Grutter, 539 U.S. at 318–20 (“[T]here is no number, percentage, or range of numbers or percentages that constitute critical mass. . . . [C]ritical mass means numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race.” (citations omitted)).
This is problematic because the “university’s goals cannot be elusory or amorphous—they must be sufficiently measurable to permit judicial scrutiny of the policies adopted to reach them,” while the conception of “critical mass” requires there be no quantitative measure in order to prevent it from appearing like a quota. Fisher II, 136 S. Ct. at 2211. This creates an issue for how to determine when “critical mass” for the purpose of achieving a diversity goal has been achieved.
. Fisher II, 136 S. Ct. at 2212 (“Though a college must continually reassess its need for race-conscious review, here that assessment appears to have been done with care, and a reasonable determination was made that the University had not yet attained its goals.”).
. Compare Fisher I, 570 U.S. at 312–15, with Fisher II, 136 S. Ct. at 2210–12.
. The conception of diversity established in Grutter has shifted slightly because Fisher II introduced the incorporation of intra-racial diversity, noting that “critical mass” may require something besides just a critical mass of each race, specifically, experiences within each race may be considered as well. See Fisher II, 136 S. Ct. at 2110–11. However, the test for diversity has remained the same as it was in Grutter, with specific emphasis on the Court’s continued efforts to give deference to the university’s good faith. Id. at 2211–14.
. Grutter, 539 U.S. at 325.
. Id. at 330–32; Stephen M. Rich, What Diversity Contributes To Equal Opportunity, 89 S. Cal. L. Rev. 1011, 1034–36 (2016) (“[I]t begs the question why the Court insisted on drawing such close connections between education and the value of diversity, and does not establish that diversity generally is sufficiently important to sustain the use of racial preferences when the success of a university’s educational mission is not at stake.”).
. Rich, supra note 40, at 1031–33 (“A more robust verification requirement, however, would have risked undermining the value of academic freedom that has provided the foundation for the Court’s diversity rationale.”); see also Grutter, 539 U.S. at 318–20.
. See Rich, supra note 40, at 1031–46. The goal of diversity may go beyond just a “critical mass” of racially and ethnically diverse individuals toward a goal of creating equal opportunity through the understanding of historical discrimination. If the true goal is to break down racial stereotypes, simply achieving “critical mass” of racial numbers in an attempt to integrate may not be enough. It may require going beyond the racial make-up of an applicant pool toward including diverse faculty, learning methods, and mentorship in order to truly achieve the educational benefits of diversity. Id. The concept of “critical mass” is unstable because the goals of diversity beyond integration may require a decrease in the quantity associated with critical mass. However, it is also argued that Grutter’s formulation of diversity may do more than just promote integration because it embodies anti-subordination values that look to the future in attempting to ensure there is no creation of a second-class status. Id.
. Id. at 1035–37 (“The current doctrine’s failure to distinguish between exploitative and egalitarian uses of diversity . . . is a direct consequence of this shift; the doctrine now focuses on whether a university’s pursuit of diversity advances the university’s educational mission, not on whether a university’s enrollments reflect an effort to provide equal opportunity.”). The exploitative use of diversity is to simultaneously profit from the educational benefits diversity can provide to a university and buy into the instrumental justification that diversity is only a compelling interest based on what it can contribute to the mission of a university. See id. at 1031–37. The egalitarian use of diversity is to pursue the belief that people deserve equal opportunities. Id. The current doctrine of diversity does not distinguish between these two objectives and places a larger focus on the instrumental value of how a university’s mission can be served by diversity. Id. at 1035–37. This creates an equal opportunity problem because unless diversity is viewed with an understanding of the unique challenges minorities face in education, minorities will not have a fair shot at the admitted student spots. Without equal opportunity to admission at elite universities, each admission spot becomes non-fungible and broken down into spots reserved for whites, African Americans, Asians, etc.
. See Lauren Camera, A Community Divided: Asian-Americans Are Divided Over an Affirmative Action Case that Argues Harvard Discriminates Against Them, U.S. News & World Rep. (Oct. 12, 2018, 6:00 AM), https://www.usnews.com/news/the-report/articles/2018-10-12/affirmative-action-case-drives-wedge-in-asian-american-community.
. If the objective is equal outcomes, this may lead to a solely integration-based conception of affirmative action where comparably “equal outcomes” rely on proportionate representation. If this is the case, there may be “equal outcomes” for a racial group, such that the group is represented by a “meaningful number” of individuals, but this fails to take into consideration histories of discrimination and the impact this historical oppression may have on the ability for individuals within groups to achieve “success.” If the objective is equal opportunity, then similarly situated minority groups should receive the same treatment. In order to understand what would create equal opportunities, an anti-subordination principle that takes into account remedial justifications for affirmative action may be necessary. However, this anti-subordination principle may fail to bring about true equal opportunity if the historical discrimination of some groups is not acknowledged or is undervalued. See Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles Over Brown, 117 Harv. L. Rev. 1470, 1472–73, 1532–33 (2004).
The recognition of a group’s history of discrimination should by no means be used to invalidate or undermine the patterns of oppression that plague other groups. Specifically, it should not be used to claim that Asian Americans have suffered equal oppression as other groups, particularly African Americans, when it is widely understood that Asian Americans do not face the same systematic racism and obstacles faced by African Americans.
. The ideal would be for affirmative action to be a discussion that includes minority voices to determine what diversity should look like in an admissions process, rather than an all-or-nothing debate. Giving voice to Asian Americans, who have largely been left out of the white–black discussion until recently, is necessary in order to create any solution that would further the goals affirmative action is based upon.
When university administrators have hidden quotas to keep down Asian admissions, this is because Asians are seen as destroying the predominantly white character of the university. Under this mentality, we cannot let in all those Asian over-achievers and maintain affirmative action for other minority groups. We cannot do both because that will mean either that our universities lose their predominantly white character or that we have to fund more and better universities. To either of those prospects, I say, why not? and I condemn the voices from my own community that are translating legitimate anger at ceilings on Asian admissions into unthinking opposition to affirmative-action floors needed to fight racism.
. Id. at 149–50.
. See Pat K. Chew, Asian Americans: The “Reticent” Minority and Their Paradoxes, 36 Wm. & Mary L. Rev. 1, 4 (1994).
Asian Americans are a “reticent” minority group. Compared to the other major ethnic groups in this country, for instance, Asian Americans are less politically organized and vocal. Their reticence, combined with other cultural factors, has made it difficult for all Americans—whites, Asian Americans and other minority groups—to understand who Asian Americans are.
Id. at 4–5 (footnotes omitted).
. Shaun R. Harper, Lori D. Patton & Ontario S. Wooden, Access and Equity for African American Students in Higher Education: A Critical Race Historical Analysis of Policy Efforts, 80 J. Higher Educ. 389, 397 (2009).
. Dana Takagi, The Retreat from Race: Asian-American Admissions and Racial Politics 21–22 (1992). From 1976 to 1982, enrollment increased nationwide by 1.3% for African Americans, 5% for whites, 32% for Hispanic Americans, and 62% for Asian Americans. Id. at 21.
. Id. at 77–78.
. Id. at 51. Asian Americans began challenging admissions policies at elite universities nationwide, including Brown, Harvard, Princeton, Stanford, and UC Berkeley, but have yet to see any concrete judicial success. Id. at 23–51.
. E.g., Brief for Asian Am. Legal Def. & Educ. Fund et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for Asian Ams. Advancing Justice et al. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981); Brief for 39 Undergraduate and Graduate Student Orgs. within the Univ. of Cal. as Amici Curiae Supporting Respondents, Fisher II, 136 S. Ct. 2198 (2016) (No. 14-981).
. Brief for the Asian Am. Legal Found. & the Asian Am. Coal. for Educ. et al. as Amici Curiae Supporting Petitioner at 23–28, Fisher II, 136 S. Ct. 2198 (2016) (No. 14–981) (discussing studies and anecdotal evidence to support the claim that Asian Americans are frequently discriminated against in the application of the SAT test score standard though none of these reported included references or data to University of Texas at Austin).
. The model minority myth underscores institutional racism because it pins Asian Americans as successful in comparison to other minorities. It perpetuates an assumption that all minorities face the same experiences and barriers to success when it is clear that they do not. While some Asian Americans may have found success in America, it is in no way due to some inherent “Asian quality” that makes them more likely to succeed. To compare Asian Americans against other minorities is to discount the very real, lingering effects of slavery, Jim Crow laws, and mass incarceration that do not create obstacles for Asian Americans the same way they do for African Americans. Asian American successes are de-emphasized when those successes are attributed to simply being Asian and not from the individual’s hard work and sacrifice. When the stereotype is that Asian Americans cannot fail because of something inherent in “being Asian,” their successes appear less impressive. When one hears that the valedictorian of a high school is Asian American, and the response is “of course” as opposed to hearing that the valedictorian is white, then that Asian American valedictorian is harmed by some perception of the model minority myth. For further discussion of the model minority myth, see Kat Chow, ‘Model Minority’ Myth Again Used as a Racial Wedge Between Asians and Blacks, NPR: Code Switch (April 19, 2017, 8:32 AM), https://www.npr.org/sections/codeswitch/2017/04/19/524571669/model-minority-myth-again-used-as-a-racial-wedge-between-asians-and-blacks.
. Asian Americans were the first group of immigrants to be explicitly excluded from the United States, with the passage of the Chinese Exclusion Act of 1882. Yuning Wu, Chinese Exclusion Act, Encyclopedia Britannica (Nov. 13. 2013), https://www.britannica.com/topic/Chinese-Exclusion-Act. Then, Japanese immigration was specifically restricted in the Gentleman’s Agreement in 1907, and the 1924 Immigration Act barred immigrants from several other Asian countries. Univ. of Del., Comparison of Asian Populations During the Exclusion Years & Summary of Key Laws Regarding the Immigration and Citizenship of Asians in the United States (2006), http://www1.udel.edu/readhistory/resources/2005_2006/summer_06/hsu.pdf [hereinafter Summary of Key Laws].
. See generally United States v. Thind, 261 U.S. 204 (1923) (holding Asian Indians were not eligible to apply for U.S. citizenship); Ozawa v. United States, 260 U.S. 178 (1922) (holding Japanese were not eligible to apply for U.S. citizenship).
. United States v. Wong Kim Ark, 169 U.S. 649, 705 (1898).
. Regan v. King, 49 F. Supp. 222 (N.D. Cal. 1942) (plaintiff argued for United States v. Wong Kim Ark to be overruled and the removal of all individuals of Japanese ancestry born in the United States from voter rolls).
. The Supreme Court did not strike down anti-miscegenation laws, which applied to Asian Americans, as unconstitutional until Loving v. Virginia, 388 U.S. 1, 12 (1967). The “separate but equal” doctrine’s application to Asian Americans was sanctioned by the Supreme Court in Gong Lum v. Rice, 275 U.S. 78, 87 (1927) (allowing Mississippi to prevent a Chinese student from enrolling at an all-white school).
. Brian Niiya, The Last Alien Land Law, Densho Blog (Feb. 7, 2018), https://densho.org/last-alien-land-law. The large-scale economic disenfranchisement of Asian Americans was fueled by an increased threat of Asian competition in farming. Amy K. Buck, Alien Land Laws: The Curtailing of Japanese Agricultural Pursuits in Oregon 1–4 (1999) (unpublished M.A. thesis, Portland State University), https://pdxscholar.library.pdx.edu/open_access_etds/3988. These Alien Land Laws exacerbated the negative effects of the Japanese internment because many of the Japanese Americans were unable to own their land, so their land was taken from them by the time they returned from the internment camps. Id.
. Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (facially race-neutral law applied in racially prejudicial manner violated Fourteenth Amendment). The San Francisco ordinance made it illegal to operate a laundry in a wooden building without a permit, but the Board of Supervisors had discretion in determining to whom to grant permit. Id. at 357–59. Of the 320 laundries at the time, about 95% of them were operated in wooden buildings, and approximately two-thirds of those laundries were owned by Chinese people. See id. at 358–59. The Board of Supervisors denied all two hundred applications that were submitted by Chinese owners. Id. at 359. At the same time, virtually all of the non-Chinese applicants were granted a permit with the exception of one applicant. Id.
. The Supreme Court upheld Executive Order 9066 in Korematsu v. United States, 323 U.S. 214, 223–24 (1944), which authorized the internment of more than 120,000 people of Japanese descent, two-thirds of which were U.S. citizens. Executive Order 9066 was signed by President Franklin D. Roosevelt on February 19, 1942. Id. at 226–27. Japanese Americans were given between 48 hours to one week to pack one bag and report to an assembly center. Exploration: Japanese-American Internment, Digital History, http://www.digitalhistory.uh.edu/active_learning/explorations/japanese_internment
/internment_menu.cfm (last visited Jan. 3, 2019). From there, they were sent to internment camps that were “surrounded by barbed wire and armed guards.” Id. The Japanese Americans were detained in these camps for three to four years and given a mere $25 upon their release. Ron Grossman, Flashback: When Japanese-Americans Were Sent to Internment Camps, Chi. Trib. (Feb. 9, 2017), https://www.chicagotribune.com/news/opinion/commentary/ct-japanese-internment-camps-war-trump-roosevelt-flashback-perspec-0212-jm-20170208-story.html. There were zero reported incidents of traitorous activity by Japanese Americans during this time, despite the government using this to support their “military necessity” justification. Bill Ong Hing, Lessons to Remember from Japanese Internment, Huffington Post (Apr. 22, 2012), https://www.huffingtonpost.com/bill-ong-hing/lessons-to-remember-from-_b_1285303.html. The compelling government interest of “military necessity” was later found to be based on unsubstantiated facts after a group of young Asian American attorneys filed a writ of coram nobis. Dale Minami: A Chance of a Lifetime, Fred T. Korematsu Inst. (Jan. 6, 2009), http://www.korematsuinstitute.org/news/dale-minami-a-chance-of-a-lifetime. Over forty years later, reparations of $20,000 and a formal apology were awarded to survivors, though most of those who had been interned were deceased by this time. Id. The Japanese internment is important because it reveals a lot about the nature and dangers of anti-Asian prejudice creating a stereotype of Asians as a “perpetual foreigner.” It begs the question of whether the mass imprisonment of U.S. citizens would have been executed against other groups who are not stigmatized by the concept of “foreignness.” Roger Daniels, Concentration Camps: North America—Japanese in the United States and Canada During World War II, at xvi (Robert E. Krieger Publ’g Co. 1981) (1971) (“[T]he legal atrocity which was committed against the Japanese Americans was the logical outgrowth of over three centuries of American experience, an experience which taught Americans to regard the United States as a white man’s country.”).
. For this hate crime, the two men received three years of probation and a fine of $3,780 each, which sparked a movement toward political awareness and advocacy for the Asian American community. Lynette Clemetson, A Slaying in 1982 Maintains Its Grip on Asian-Americans, N.Y. Times (June 18, 2002), https://nyti.ms/2lqriDq.
. Acquittal in Doorstep Killing of Japanese Student, N.Y. Times (May 24, 1993), https://nyti.ms/2GK2ZuK. Hattori was attempting to attend a party with a fellow student, but they knocked on the wrong door. Hattori v, Peairs, 662 So. 2d 509, 511–13 (La. 1995). The owner of that property shot Hattori, but claimed it was in self-defense because he was reasonable to view Hattori as a threat. Id.
. See Chew, supra note 49, at 59 n.263 (“What if Hattori was black? One wonders if American society is more likely to attend to black/white confrontations than to confrontations between other groups.”). Had Hattori been white, would the jury be more likely to find this story unreasonable? Id. at 59. Does it make the fear the owner felt more reasonable because Hattori was Japanese? If Hattori was black, would the jury be more likely to be receptive to claims that it was the owner’s racism that made him fear Hattori and not a reasonable fear? We cannot be fooled into thinking that “reasonableness” is an objective standard when it is clearly influenced by what that jury views as reasonable, all of which is permeable to racism and negative stereotypes. Id.
. See U.S Comm’n on Civil Rights, Civil Rights Issues Facing Asian Americans in the 1990s 46 (1992).
. This is not to say that Asian Americans face the largest number or most violent hate crimes. It is attempting to bring attention to current manifestations of prejudice against Asian Americans that often go unreported or unacknowledged. Jenny J. Chen, First-Ever Tracker of Hate Crimes Against Asian-Americans Launched, NPR (Feb. 17, 2017), https://www.npr.org/sections/codeswitch/2017/02/17
. Chen, supra note 71; Anti-Asian Hate Crimes in Los Angeles Surge After Trump Deems China an Enemy, Asian Am. Advancing Just. (Jan. 30, 2017), https://advancingjustice-aajc.org/news/anti-asian-hate-crimes-los-angeles-surge-after-trump-deems-china-enemy; Kamal S. Kalsi, Xenophobia Towards Asian Americans and Pacific Islanders Persists Under Trump Administration, Huffington Post (June 2, 2017), https://www.huffingtonpost.com/entry/xenophobia-towards-asian-americans-and-pacific-islanders-persists-under-the-trump-administration_us_592f1075e4b09ec37c313e66.
. Asian Americans are perceived as “perpetual foreigners.” This stems from Asian Americans arriving in America as immigrants, much like other ethnic groups. However—unlike European immigrants and, to some extent, Hispanic American immigrants—Asian Americans’ facial characteristics cannot provide them any possibility of being “white-passing.” In addition, Asian culture is often seen as exotic and not assimilable to American culture.
My mother’s family has lived in the United States for three generations; her own parents barely spoke Japanese and had never been to Japan. Yet I continue to get asked “why is your English so good?” or “where are you really from?” as though I am not equally as American as a fourth-generation immigrant from a European country. How often are those questions asked of a white person or even an African American person?
I recognize that many of these issues are not unique to Asian Americans. For example, Middle Eastern Americans and, to some extent, Hispanic Americans also do not have the benefit of being “white-passing” or being viewed as part of American culture.
The caveat of being “foreign” means Asian Americans are accepted into American society so long as they don’t pose a threat. The minute the country of their ancestors does something “against America,” they are no longer American, they are Japanese or Chinese, or in the current climate, Muslim.
. Matsuda, supra note 5, at 150. Asian Americans act as a “racial bourgeoisie” because they are never going to be “white enough” to be white, but other people of color view them as too privileged to truly be considered minorities. This means that Asian Americans are neither accepted by whites nor people of color. See Emily S. Zia, Note, What Side Are We On? A Call to Arms to the Asian American Community, 23 Asian Am. L.J. 169, 169–75 (discussing her experience as an Asian American trying to participate in a “die-in” as part of a “Boalt With Ferguson” protest at UC Berkeley School of Law) (“All of these events made me feel like the other students of color did not view Asian Americans as allies, let alone people of color. . . . [W]hy did my fellow students of color view us as closer to White than to Black?”). Although her point about being viewed as closer to white than African American is valid, it is important to make clear that it is not Asian Americans’ place to intrude on an experience that does not affect them the same way it does African Americans. The goal is not to tell African Americans how to lead a Ferguson protest, but there should be room to include those who are willing to be active listeners. The danger of being in a racial middle ground is that Asian Americans are often excluded from the discussion, but it also means Asian Americans have a powerful position to effect change.
. Frank H. Wu, Yellow: Race in American Beyond Black and White 58 (2002) (“DePaul University law professor Sumi Cho has explained that Asian Americans are turned into ‘racial mascots’ giving right-wing causes a novel messenger, camouflaging arguments that would look unconscionably self-interested if made by whites about themselves.”); William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 Mich. J. Race & L. 605, 621 (2006); Chew, supra note 49, at 66.
. See generally Claire Jean Kim, The Racial Triangulation of Asian Americans, 27 Pol. & Soc’y 105 (1999) (explaining racial triangulation). Racial triangulation is the concept of having “foreignness” and “superiority” on x-y axes. Id. at 107–08. Whites and African Americans are on opposite ends of the “superiority” y-axis spectrum but at the lowest end of the x-axis “foreignness,” while Asian Americans are on the peak of “foreignness” and lie in the middle on the “superiority” axis. Id. This creates a triangle that place Asian Americans in a racial bourgeoisie between whites and African Americans that no amount of success (attributable to the model minority myth) can overcome due to the conception of foreignness. Id. The use of this racial triangulation may be used to benefit conservative groups looking to preserve a “white image” and create a pitting of racial minorities against each other in order to maintain political dominance. Id. at 122–23.
This payoff is so rich that conservatives have actually manufactured conflicts between Blacks and Asian Americans in order to achieve it. . . . [In the 1980s, conservative affirmative action opponents] shifted public debate from the real issue at hand—whether or not several leading universities imposed racial quotas on Asian American students to preserve the whiteness of their student bodies—to the false issue of whether affirmative action programs designed to benefit Blacks and Latinos unfairly discriminated against Asian Americans.
. The concept of Asian Americans as perpetual foreigners has occurred throughout history and continues to exist in American culture. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting) (“There is a race so different from our own that we do not permit those belonging to it to become citizens of the United States. Persons belonging to it are, with few exceptions, absolutely excluded from our country. I allude to the Chinese race.”); Schutte v. Coal. to Defend Affirmative Action, 572 U.S. 291, 381 (2014) (Sotomayor, J., dissenting).
Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country. Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
Schutte, 572 U.S. at 381.
. This was seen during World War II, where Italian and German Americans were not conflated with their ancestor country to the same extent as Japanese Americans, who were placed in internment camps. Asian Americans are easy targets for this type of discrimination because they are seen as different and inherently un-American. It brings into question whether this is something that Muslim Americans and Middle Eastern Americans face in twenty-first century America.
. Gabriel J. Chin et al., Beyond Self-Interest: Asian Pacific Americans Toward a Community of Justice, a Policy Analysis of Affirmative Action, 4 UCLA Asian Pac. Am. L.J. 129, 149 (1996) (“[Asian Americans] generally have more individuals contributing to household income than the national average . . . .”). Asian Americans also tend to live in geographic areas that tend to have higher costs of living and above-average incomes for all residents, indicating that Asian Americans are no more successful than any other race. Id. Immigration laws historically favored highly-educated Asian professionals, which greatly influenced the Asian immigrant demographics, which could affect the average income levels and perceived socioeconomic mobility of Asian Americans. Id. at 150.
. See Chin et al., supra note 80, at 154 (discussing how Asian Americans are “under-parity” in numerous fields and would not have their current representation in those areas without the aid of affirmative action policies).
. Kimberly West-Faulcon, Obscuring Asian Penalty with Illusions of Black Bonus, 64 UCLA L. Rev. Disc. 590, 629 n.153 (2017).
My point is that accusing Harvard of racial balancing is a promising means of convincing the federal court to strike down the institution’s racial affirmative action policy but, if Harvard admissions officials have an either conscious or unconscious enrollment limit they are inclined to impose on Asian American enrollment to preserve Harvard’s predominantly white character, eliminating racial affirmative action will neither expose or rectify that type of anti-Asian bias in admissions.
Id.; Jerry Kang, Negative Action Against Asian Americans: The Internal Instability of Dworkin’s Defense of Affirmative Action, 31 Harv. C.R.-C.L. L. Rev. 1, 14–18 (discussing that negative action rather than affirmative action is the main source of any limits in admissions for Asian Americans).
. Jaweed Kaleem, Asian Americans Are Divided After the Trump Administration’s Move on Affirmative Action, L.A. Times (Aug. 3, 2017), http://www.latimes.com/nation/la-na-asian-americans-affirmative-action-20170803-story.html (“Affirmative action opponents often cite a 2009 study that found Asian Americans had to score 140 points higher on SAT exams in order to be on equal footing with whites in private university admissions—a difference they sometimes call the ‘Asian tax.’”) (“But the test score phenomenon exists regardless of whether the university considers race in its admission. So there is something else happening.”) (quoting Asian Americans Advancing Justice Attorney Nicole Gon Ochi).
This is primarily about conservative leaders protecting the privilege of access to society’s resources and opportunities for certain white constituents . . . . Such leaders’ purported concern for discrimination against Asian Americans is politically opportunistic. . . . I don’t see many of them concerned about discrimination against Asian Americans in other contexts . . . such as the “bamboo ceiling” in corporate America, where such discrimination does not harm white interests.
Id. (quoting Professor Kim Forde-Mazrui, University of Virginia School of Law).
. Carolyn Chen, Opinion, Asians: Too Smart for Their Own Good?, N.Y. Times (Dec. 19, 2012), https://nyti.ms/2jKMeQF (“For middle-class and affluent whites, overachieving Asian-Americans pose thorny questions about privilege and power, merit and opportunity. Some white parents have reportedly shied away from selective public schools that have become ‘too Asian,’ fearing that their children will be outmatched.”). For the Harvard class of 2022, the numbers are approximately 23% Asian and 47% white. Harvard Admitted Students Profile, Harv. C.: Admissions & Fin. Aid, https://college.harvard.edu
/admissions/admissions-statistics (last visited Jan. 21, 2019).
. Complaint, supra note 7, at 1. The action is being brought under Title VI of the Civil Rights Act of 1964 because Harvard College is a private university and would not be subject to constitutional challenges under the Equal Protection Clause. However, because Harvard College accepts federal funding, it is subject to the statutory obligations under Title VI. Education and Title VI, U.S. Dep’t of Educ., https://www2.ed.gov/about/offices/list/ocr/docs/hq43e4.html (last updated Sept. 25, 2018); see also Complaint, supra note 7, at 94.
. Alexander v. Sandoval, 532 U.S. 275 (2001) (deciding that Title VI regulations did not include a private right of action based on evidence of disparate impact).
It seems the Court will likely allow a private right of action under Title VI. See generally Lau v. Nichols, 414 U.S. 563 (involving the Court allowing a private right of action under Title VI to non-English speaking Chinese students seeking relief against the San Francisco School District, but the existence of a private right of action was never disputed in this case); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (involving four justices assuming, without deciding, that a private right of action was available under Title VI, one justice denying a private right of action could be implied, and the remaining four justices concluding that the private action was available).
. Id. at 8. When the complaint was filed, the unnamed applicant was the only Standing Member (other than his father). Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *37 (D. Mass. Sept. 28, 2018). SFFA has since added additional members to the suit, including several that it identified as “Standing Members,” several of whom were Asian American applicants rejected from Harvard. Id. These members filed affidavits and testified in court stating they would be able and ready to transfer if Harvard ceases using race-conscious admissions. Id. at *39–41. Harvard alleged that the Standing Members ability to challenge has become moot because they are now ineligible to transfer or no serious intention to. However, based on the testimony of two Standing Members still eligible for transfer, the court found there was enough to support SFFA’s associational standing. Id. at *41.
. Complaint, supra note 7, at 8. It is of note that the plaintiff is unnamed, and the suit is being brought on behalf of an organization that is claiming to represent the interests of its members, including the unnamed plaintiff. Whether the Supreme Court will determine SFFA has standing to bring the suit is uncertain since equal protection is generally to provide individual relief and all other affirmative action cases have been brought by named individuals rather than a curated “litigation vehicle.” Defendant’s Motion for Summary Judgment at 1, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901 (D. Mass. Sept. 28, 2018), ECF No. 417. According to Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 224 (1995), the right to equal opportunity is a personal right, so what matters is the treatment of the individual plaintiff not the average Asian American plaintiff. However, the district court denied Harvard’s motion for summary judgment based on lack of standing. See SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *41. There is skepticism that using one unnamed Asian American plaintiff shows Asian Americans are being manipulated in an effort to eliminate affirmative action on behalf of a non-Asian American membership. While this may have merit, it is also important that the concerns voiced by Asian Americans not be dismissed by supporters of affirmative action simply because they are being wielded by a group like SFFA.
. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *16–23 (describing the undisputed facts regarding the Harvard admissions process).
. Id. at *18–21.
. Id. at *20. The assessment of an applicant’s personal rating is subject to racial bias if unconscious stereotypes are able to affect an officer’s view of whether a candidate possesses these traits.
. Id. at *20–21. By not having a specific formula, there is a possibility that some categories may be given more weight than others. While it may be useful to allow a university to have discretion to view every candidate holistically, there may be reason for skepticism if there is a large disparity between the overall ratings given to Asian Americans and what the summed total of their other ratings would have been. If Asian Americans were to score higher than white applicants in the other categories, including extracurricular, personal, and interview ratings, but still receive lower overall ratings, it may be an indication that Asian Americans’ race negatively affects how they are viewed overall.
. Id. at *22–23.
. Id. at *28–31. Is the reason for Asian American admission decreasing with the consideration of non-academic variables truly due to Asian Americans only being good at academics or is it because their other traits and activities are undervalued in comparison to other racial groups?
. Id. at *30. If the only difference accounting for the higher admittance rates of non-legacy, non-athlete white applicants is the personal rating, it begs the question of whether white applicants receive a biased preference over Asian American applicants based on amorphous personal traits that may be subject to cultural differences.
. Id. at *30–31.
. Id. at *26.
. Id. at *26–27.
. Id. at *27–28.
. Id. Blum chose the University of Texas at Austin, his own alma mater, as the subject of the challenge. Id. Abigail Fisher was the daughter of Blum’s friend. Id.
. Id. The Voting Rights Act of 1965 was a response to the deep-rooted history of discrimination in voting. Shelby County v. Holder, 570 U.S. 529, 529–30 (2013). The Act required certain “eligible” districts with a history of voting discrimination to gain official authorization before they could enact any changes to their election laws. Id. at 537–39. To gain authorization, these districts had to prove that the new changes did not have the purpose nor the effect of negatively impacting any individual’s right to vote based on their race. Id. The Supreme Court determined that this Section of the Act was unconstitutional because it imposes current burdens that are no longer responsive to the current conditions of the voting districts. Id. at 555–57.
Blum’s challenge of the Voting Rights Act of 1965 was rooted in his experience in losing a race for Congress in Houston as a Republican. Hartocollis, supra note 104. He was bothered by the district’s “tortured shape, designed to make it easier for a minority candidate to win the seat.” Id.
Affirmative action sits in a uniquely similar position to the Voting Rights Act of 1965 in that it may be vulnerable to accusations of unconstitutionality based on a court’s determination that the historical discrimination that created the need for such protections are no longer a concern.
. Id. It is of note that Justice Kennedy was the swing vote in Fisher II, but he has since been replaced by Justice Brett Kavanaugh. Chas Danner, Brett Kavanaugh Sworn in as 114th Supreme Court Justice, Intelligencer (Oct. 7, 2018), http://nymag.com/intelligencer/2018/10/brett-kavanaugh-sworn-in-as-114th-supreme-court-justice.html.
. See generally Docket, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 1:14-cv-14176 (D. Mass.).
. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 261 F. Supp. 3d 99, 102 (D. Mass. 2017).
. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 1:14-cv-14176, 2017 U.S. Dist. LEXIS 84656, at *2–3 (D. Mass. June 2, 2017); see also Complaint, supra note 7, at 109–11, 114–19; Ellis, supra note 8.
. Kirk Carapezza, DOJ Looks Into Whether Harvard Discriminates Against Asian-Americans, NPR (Aug. 3, 2017), https://www.npr.org/541430130 (“Civil rights groups and legal experts are skeptical. ‘It seems entirely consistent with President Trump’s campaign rhetoric,’ says Tomiko Brown-Nagin, a constitutional law professor at Harvard. Brown-Nagin points out that the Trump administration’s decision to target affirmative action policies comes as racial tensions are rising on many campuses.”).
. David Shortell, Justice Department Sides With Asian-Americans Suing Harvard Over Admissions Policy, CNN (Aug. 30, 2018), https://cnn.it/2POYxf9 (“The record evidence demonstrates that Harvard’s race-based admissions process significantly disadvantages Asian-American applicants compared to applicants of other racial groups—including both white applicants and applicants from other racial minority groups . . . .” (quoting United States’ Statement of Interest in Opposition to Defendant’s Motion for Summary Judgment, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 1:14-cv-14176 (D. Mass. Sept. 28, 2018), ECF No. 497)).
. Id. It is uncertain what impact the DOJ’s involvement will have on the outcome of SFFA v. Harvard or affirmative action in general, though if a federal judge finds Harvard has violated Title VI, the court could order the university to change its admissions policies. Melissa Korn & Nicole Hong, Harvard Faces DOJ Probe Over Affirmative-Action Policies, Wall St. J. (Nov. 21, 2017, 3:12 PM), https://www.wsj.com/articles/harvard-faces-doj-probe-over-affirmative-action-policies-1511260380.
. Expert Report of Peter S. Arcidiacono at 5, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 415-1. Professor Arcidiacono has an extensive background in studying admissions decisions in higher education. Id.
. Expert Report of Richard D. Kahlenberg, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 416-1.
. Report of David Card, Ph.D., Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 419-33; see also Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *44–68 (D. Mass. Sept. 28, 2018). Professor Card specializes in labor economics. Colleen Walsh, Attorney Appears Confident Admissions Case Ruling Will Favor Harvard, Harv. Gazette (Nov. 4, 2018), https://news.harvard.edu/gazette/story/2018/11/harvard-attorney-appears-confident-in-admissions-case-ruling.
. Joint Statement Regarding the Submission of Trial Briefs at 1, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. Aug. 13, 2018), ECF No. 478.
. Plaintiff’s Motion for Summary Judgment at 2, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901 (D. Mass. Sept. 28, 2018), ECF No. 412.
. Id. at 4–5 (quoting Grutter v. Bollinger, 539 U.S. 306, 389 (2003) (Kennedy, J., dissenting)).
. Id. at 5–6.
. Id. at 11.
. Id. at 12–22 (“In 1920, in a letter to William Hocking, a Harvard philosophy professor, President Lowell wrote that the increasing number of Jewish students enrolling at Harvard would ultimately ‘ruin the college’.”). A Harvard alum wrote a letter to President Lowell indicating desires to maintain the school’s “white image” through the reduction of Jewish students, claiming
[t]he Jew is undoubtedly of high mental order, desires the best education he can get CHEAPEST, and is more persistent than other races in his endeavors to get what he wants. It is self evident, therefore, that by raising the standard of marks he can’t be eliminated from Harvard, whereas by the same process of raising the standard “White” boys ARE eliminated.
. . . Are the Overseers so lacking in genius that they can’t devise a way to bring Harvard back to the position it always held as a “white man’s” college?
Id. at 17–18. President Lowell accepted the perpetuation of these stereotypes in order to protect a “white image” that would be achieved through a subjective, “character” based admissions policy that was undoubtedly created with a purpose to discriminate. Id. at 20 (“President Lowell was elated by these changes, realizing that they ‘provided a tremendous opportunity to impose, at long last, the policy of restriction he had favored since 1922.’”).
. Id. at 28–34.
. Id. at 34–36. However, the former Dean of Admissions Fred Jewett, explained that the 112-point disparity in average SAT scores of admitted Asian Americans compared to admitted white students were due to “choosing people who bring talents underrepresented in the applicant pool.” Id. at 36. In addition, the current Dean of Admissions, William Fitzsimmons, recognized the slightly stronger academics of Asian Americans as compared to white applicants, but “blamed the disparity in admissions on Asian Americans, as a group, being ‘slightly less strong on extracurricular criteria.’” Id.
. Id. at 36–37. However, the complaint stipulates that the Office of Civil Rights’s report was highly criticized for allowing “racial balancing” and creating a pretext for intentional discrimination. Id.at 37.
. See generally Thomas J. Espenshade & Alexandria W. Radford, No Longer Separate, not yet Equal: Race and Class in Elite Admission and Campus Life (2009) (analyzing college admissions data to explore the composition of applicant pools to selective universities).
. Ron Unz, The Myth of American Meritocracy, Am. Conservative, Dec. 2012, at 14.
. Complaint, supra note 7, at 49–50 (alteration in original).
. Id. at 53–55 (specifically referencing Table B).
. Id. at 56–67. Princeton Review, the “leading guide to college admissions,” gives recommendations for Asian American students applying to elite colleges, stating “the more you sound like”
Asian Joe Bloggs . . . an Asian American applicant with a very high math SAT score, a low or mediocre verbal SAT score, high math- or science-related SAT II scores, high math and science grades, few credits in the humanities, few extracurricular activities, an intended major in math or the sciences, and an ambition to be a doctor, an engineer, or a research scientist,
“the more likely admissions officers will be to treat you as part of the ‘Asian invasion’ and reject your application, or at the very least make you compete against other Asian applicants with similar characteristics, rather than against the applicant pool as a whole.” Id. at 57–58. According to Princeton Review, suppressing one’s ethnic background is important to better an Asian American applicant’s chances of acceptance at elite institutions. See id. at 58–59.
If you’re given an option, don’t attach a photograph to your application and don’t answer the optional question about your ethnic background. . . . Do not write your application essay about the importance of your family or the positive/negative aspects of living in two cultures. These are Asian Joe Bloggs topics, and they are incredibly popular. Instead, write about something entirely unrelated to your ethnic background.
There is danger in anecdotal testimony because it is based on personal perception and can be susceptible to bias. While the stories told by the individuals and groups in SFFA’s complaint are useful to understand the way a community of applicants may feel and may potentially be accurate reflections of a situation, it should not be considered direct evidence of discrimination in an admissions policy.
. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *43–44 (D. Mass. Sept. 28, 2018).
. Expert Report of Peter S. Arcidiacono at 1–10, Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, No. 14-cv-14176 (D. Mass. June 15, 2018), ECF No. 415-1.
. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *43–46.
. See Walsh, supra note 125 (describing Card’s criticisms and some basis for what other experts in the field may believe the proper modeling choice is) (“Lawyers for Harvard also cited an amicus brief field by 16 economists, including two Nobel laureates and former chair of the Federal Reserve Janet Yellen, who backed Card’s approach and labeled Arcidiacono’s findings ‘implausible.’”). Although Arcidiacono’s model may be subject to criticism, there may also be some bias in Card’s approach which includes factors in his regression that are already subject to racial bias.
. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *48.
. Id. at *49–51.
. This approximation is from when the complaint was originally filed. The admissions statistics are from 2006 to 2014, and the enrollment statistics are from 2003 to 2013. Id. at 67–69 (specifically referencing Table C, Table D, and Table E).
. Id. at 65–66 (“[T]he proportion of Asian Americans with top SAT scores . . . who sent their scores to the most selective Ivy League schools fell from 39.7 percent in the mid-1990s to only 27.4 percent during the 2008, 2010, and 2012 cycles.”). This could indicate that Asian American applicants believe there is some bias in the application process and choose not to even apply to elite Ivy League schools because the perceived odds are against them despite their top SAT scores.
. Id. at 70.
. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *51–52 (D. Mass. Sept. 28, 2018).
. Id. at *52–53.
. Id. Are Asian Americans more likely to be “lopped” than applicants from other racial groups? If there is evidence that Asian Americans have consistently higher rates of “lopping,” then there may be an indication that Asian Americans receive some negative action when their race is considered.
. Id. at *53–54.
. Id. at *54.
. Id. at *54–55. For SFFA to show a racial quota, stable enrollment numbers may not be enough. It may be necessary for SFFA to show that Asian American application rates substantially increased in comparison to white application rates, but their enrollment stayed the same. Indicating that Asian Americans make up a larger portion of the qualified applicant pool but the same proportion of the admitted class would be more helpful than just stable enrollment rates.
. Id. at *56.
. Id. at *57.
. Id. at *59 (quoting Grutter v. Bollinger, 539 U.S. 306, 343 (2003)). This is a similar argument to the one made by Edward Blum in Shelby County v. Holder, 133 S. Ct. 2612, 2630–31 (2013), which invalidated the Voting Rights Act of 1965 based on reasoning that the historical discrimination that led to the passage of the act is no longer an issue. See supra note 106 and accompanying text.
. SFFA, No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *59–60 (quoting Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2212 (2016) (Fisher II)).
. Id. at *61–62.
. Id. at *62.
. Id. at 72–73. SFFA argues that Harvard fails to give proper weight to these socioeconomic factors in its admissions policy based on the lack of socioeconomic diversity in comparison to racial diversity that exists in its student body. Id. at 76.
. Id. at 77–78.
. Id. at 78–81 (“Harvard focuses its recruitment in parts of the country with small numbers of socioeconomically disadvantaged achievers and neglects regions with a significant number of such students. . . . This failure to recruit socioeconomically disadvantaged students is reflected in Harvard’s applicant pool.”).
. Id. at 81–86. Harvard’s acceptance rate for legacy applicants is “about 30 percent, which is roughly five times the rate at which all other applicants are admitted to Harvard.” Id. at 81. Legacy preferences tend to “give a competitive advantage to mainly white, wealthy applicants, while undermining the chances for admission of socioeconomically disadvantaged and minority applicants.” Id. Harvard’s propensity to give preferences to non-legacy, wealthy donor applicants also gives a competitive advantage to mainly white applicants. Id. at 83 (“Minority students are far less likely to be children of wealthy donors.”).
This creates a separate discussion about the use of legacy preferences and whether they are merely a thinly-veiled way for universities to give admissions preferences to a group of applicants that tend to be whiter and wealthier than the general applicant pool.
. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., No. 14-cv-14176, 2018 U.S. Dist. LEXIS 167901, at *66 (D. Mass. Sept. 28, 2018).
. Id. at *64–66.
. Id. at *66–67.
. See Shelby County v. Holder, 570 U.S. 529, 551–52 (2013) (reevaluating the legality of policies under the lens of their current existence, even if there was a “long history as a tool for perpetuating the evil”).
. Yick Wo v. Hopkins, 118 U.S. 356, 360 (1886). The constant admission rates of Asian Americans are unlikely to be a severe enough discriminatory impact to allow a presumption of discriminatory intent as it was in Yick Wo, so SFFA will have to find other evidence to indicate Harvard’s intent to discriminate against Asian Americans in their admissions policy. This is a high burden for SFFA to meet. See supra note 65 (describing how all two hundred applications that were submitted by Chinese owners were denied while virtually all of the non-Chinese applicants were granted a permit).
The upshot of the fact that White admitees outnumber Blacks/Latinos 3-to-1, and the aforementioned discussion about the composition of actual and likely pool of admitees is that Espenshade and Chung’s study contains a “yellow peril causation fallacy” that misidentifies [Asian Americans] as the group poised to be the biggest numerical winners if affirmative action ended at elite universities. In other words, when an [Asian American] applicant in their dataset is denied admission because of negative action despite a strong transcript and say a 1510 or 1430 or 1360 on the SAT, it is exceedingly more likely that the student admitted instead was a White applicant with slightly lower academic credentials, not a Black or Latino applicant given an affirmative action plus factor.
Id. at 615–16.
. Is it possible for schools to consider an over-representation of white students? There is a perception that schools can be “too Asian,” damaging the appeal of a university, but the same is not said for schools that are predominately white. Does the conception of over-representation apply the same to other minorities? Because while it seems that our society would be appalled at the prospect of a school being considered “too black” or “too Hispanic,” why doesn’t our society believe calling a school “too Asian” is equally racist?
. If there was a hypothetical where diversity was deemed not to be a compelling interest and the entire Harvard class consisted only of Asian Americans accepted by “objective” criteria, would SFFA be satisfied with the result? What if the entire Harvard class consisted only of white students? If neither of these outcomes are satisfactory to a society, we cannot deny the compelling interest of diversity and the potential “balancing” required to achieve it.
. See Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2211–15 (2016) (Fisher II) (“[A] university bears a heavy burden in showing that it had not obtained the educational benefits of diversity before it turned to a race-conscious plan.”) (“It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”).
A genuine commitment to class equality would lead one to target resources at an individual’s formative years as with anti-poverty programs that provide adequate housing, nutrition, and education to children. But oddly enough, the programs mentioned so far would instead give mild preferences late in life, in admissions or employment. This should give us cause for skepticism.
. Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 Mich. L. Rev. 1045, 1048 (2002).
. Liu, supra note 186, at 1048. “Many white students who were denied admission did not lose out because of minority students, but because of tight limits on enrollment. In other words, many qualified white applicants probably would have been turned down even if no minority students had applied.” Id. at 1048 n.13 (quoting John Iwasaki, Affirmative Action Aids White Students Too; Stereotype False, State Study Says, Seattle Post-Intelligencer, Nov. 19, 1995, at A9).
. Id. at 1064–68 (“[B]lack and white applicants with similar SAT scores might not be similarly situated with respect to nonacademic admissions criteria.”).
. Id. at 1046.
. Affirmative action sits within the broader idea of race-conscious admissions, but they are not the same thing. Not all admissions policies that consider race are affirmative action policies. An example of this would be a policy that enables bias against Asian American applicants in comparison to white applicants, thus giving white applicants a type of plus factor over those Asian American applicants. I think Asian Americans could potentially fare better if race-conscious admissions were banned but would not if just affirmative action was due to the causation fallacy. The difference would be that race-conscious admissions have the ability to contain negative action against Asian Americans while affirmative action inherently does not. There is space in this discussion to both remedy the grievances Asian Americans feel through the devaluation of their personal attributes and maintain the affirmative action policies necessary to fulfill the compelling interest of educational diversity.
. Id. at 604–05 (“[U]niversities do not select students solely based on SAT scores and . . . SAT scores are racially skewed as a general matter.”) (“[F]or reasons that range from the theoretical and measurement limitations of g-based standardized tests like the SAT to the fact that African Americans belong to the racial group that has been most severely harmed by American Jim Crow racism, housing segregation, public educational opportunity gaps, and disparities in economic opportunities.” (footnotes omitted)).
. See Liu, supra note 186, at 1096. At the very least, we would be better off urging top colleges to commit to genuine educational diversity that places a greater emphasis on different types of diversity like first-generation status, diversity in faculty, and diversity in the types of cultural histories taught at these schools, rather than attacking affirmative action. How often are general education classes taught from the point of view of an African American student or from the perspective of a woman? So often the education system focuses on the accomplishments of white males and fails to recognize the value of a diverse core curriculum, and this affects the way our future leaders exist and shape our society.
. For example, the “positive” stereotype that Asian Americans are successful works to diminish the success achieved by Asian Americans as expected or ordinary. This requires Asian Americans to be held to a higher standard in comparison to each other in order to stand out. There is a feeling among the Asian American community that one must be extraordinary to just seem average. In addition, a positive stereotype of Asian Americans as hard workers easily becomes translated into Asian Americans being unfair competitors.
Employers might tend to see Asian Americans as homogeneous and suited for certain defined roles that are consistent with society’s image. . . . While society may consider Asian Americans hard working and intelligent, especially in math, Asian American faculty may be considered “too nice” to be intellectually demanding and rigorous professors and scholars.
. Id. at 53.
A comparison of the number of Asian Americans in managerial and professional positions versus the number of Asian Americans with bachelor and graduate degrees evidences this disparity. One would generally expect individuals with bachelor or graduate degrees to hold managerial or professional positions. For example, 23.6 million whites hold bachelor or graduate degrees and, comparably, 26.5 million whites hold managerial or professional positions—a ratio of 1.12. Accordingly, one would expect the number of Asian Americans with this education level to correspond to the number of Asian Americans in these positions. Instead, the number of Asian Americans with these degrees (1.3 million) is significantly higher than the number in managerial or professional positions (1 million)—a ratio of 0.77.
Id. (footnotes omitted).
This should lead us to question whether the traditional beliefs about what constitutes an exemplary manager or professional are correct. If what we value as an ideal manager has race and gender stereotypes built in, a re-conception of what good leadership qualities are may be necessary. For example, if Asian Americans tend to value humility but our society rewards those who are assertive, are Asian Americans under-promoted because they are less qualified or because our society is not open to the concept that a better manager may be soft-spoken instead of self-promoting? In the educational context, what do we expect from the ideal candidate? Is it possible that the qualities we revere are subject to bias based on racial stereotypes?
. Id. at 55. There is a stigma that Asian Americans have inherent advantages compared to other minorities that enable them to succeed without deserving it, perpetuating the model minority myth.
. Id. at 63.
. Intraracial diversity is diversity within a race, while interracial diversity is diversity of races. Intraracial, supra note 201; Interracial, Merriam-Webster, https://www.merriam-webster.com
/dictionary/interracial (last visited Jan. 21, 2019). Intraracial diversity works to break down racial stereotypes by demonstrating a wide array of experiences within races, while interracial diversity works to take down segregation and inequality of opportunity in the education system. The argument urging for equality in the conception of diversity is separate from wanting intraracial diversity.
. For example, an Asian American cannot play an instrument, be good at math or science, or want to be a doctor or engineer without being considered “a typical Asian candidate.” Are white applicants allowed to excel in any area without it being considered a byproduct of their racial background? Do we view a white applicant who is a concert pianist, a varsity basketball player, an exceptional painter, or a national merit scholar as creating intra-racial diversity? In addition, when Asian Americans go against racial stereotypes, such as by participating in sports, it is often greeted with skepticism or under-valued. See Ling Woo Liu, Opinion, Why Jeremy Lin’s Race Matters, CNN (Feb. 14, 2012), https://www.cnn.com/2012/02/13/opinion/jeremy-lin-race/index.html (describing how Asian American basketball player Jeremy Lin was met with skepticism based on stereotypes that Asian Americans do not play basketball).
Lin himself has been candid about the racism he’s encountered along the way. “It’s a sport for white and black people,” he told the San Francisco Chronicle in 2008. “You don’t get respect for being an Asian-American basketball player in the U.S. . . . I hear everything. ‘Go back to China. Orchestra is on the other side of campus. Open up your eyes.’”
Id. If the stereotype associated with Asian Americans is one of “overachievement,” is the only way to break down the stereotype to underachieve? See Jeff Yang, Opinion, Harvard Lawsuit Is not what It Seems, CNN (Nov. 4, 2014), http://www.cnn.com/2014/11/24/opinion/yang-harvard-lawsuit/index.html (describing how he would have been denied admission based on his grades but an interviewer made the case that he had intangibles that would be an asset to the student body, though the assets that distinguished him were to be an “underachiever” academically and in stereotypically “Asian” activities) (“What saved my application was the optional interview I’d done on campus, in which I’d ended up talking about everything that wasn’t in my application: My aspirations to be a writer. . . . The fact that I actually really, really suck at piano.”). Although this Note focuses on stereotypes attached to Asian Americans, they are not the only minority group to be adversely affected by negative and positive stereotypes, and they should be questioned for all racial groups. See generally Geoffrey L. Cohen & Julio Garcia, “I Am Us”: Negative Stereotypes as Collective Threats, 89 J. Personality & Soc. Psychol. 566 (2005) (discussing how negative stereotypes of a group impact individuals within that group); Exploring the Negative Consequences of Stereotyping, Univ. of Ariz. News (Nov. 20, 2003), https://uanews.arizona.edu/story
/exploring-negative-consequences-stereotyping (same); Laura Green, Negative Racial Stereotypes and Their Effect on Attitudes Toward African-Americans, Ferris St. U., https://www.ferris.edu/htmls/news
/jimcrow/links/essays/vcu.htm (last visited Jan. 21, 2019) (discussing racial stereotypes of African Americans).
. Complaint, supra note 7, at 58–59 (describing recommendations that Asian American applicants not write application essays related to their ethnic background). Asian American encompasses many different groups of people and to dismiss the value this diversity could bring to elite universities should be questioned. The immigrant story of an Asian American should not be viewed any less favorably toward a “personal rating” than the story from another applicant.
. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 323 (1978).
A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. The quality of the educational experience of all the students in Harvard College depends in part on these differences in the background and outlook that students bring with them.
. Bella English, To Get Into Elite Colleges, Some Advised to “Appear Less Asian,” Boston Globe (June 1, 2015), https://www.bostonglobe.com/lifestyle/2015/06/01/college-counselors-advise-some-asian-students-appear-less-asian/Ew7g4JiQMiqYNQlIwqEIuO/story.html.
. Kang, supra note 83, at 15 (“The glib assertion that Asian Americans are ‘overrepresented’ at certain universities is less a description of empirical fact than a value judgment. It presumes that the percentage of Asian Americans at each university should reflect their percentage of the national population.”).
. Stephan Thernstorm, Farewell to Preferences?, 130 Pub. Int., Winter 1998, at 34, 42–43 (quoting Bob Beckel, CNN Crossfire co-host) (“Would you like to see the UCLA Law School 80 percent Asian? Because at the rate it is going . . . by the year 2007 UCLA will be 80 percent Asian. Will that make you happy?”); Student Quits at U.C.L.A. over Rant, N.Y. Times (March 19, 2011), https://nyti.ms/2q8wlak (describing Alexandra Wallace, a UCLA student, who posted a video complaining about Asians in the library where she stated, “the problem is these hordes of Asian people that U.C.L.A. accepts into our school every single year”); Emma Whitford, When Asians Are Targets of Racism, Inside Higher Educ. (Oct. 11, 2018), https://www.insidehighered.com/news/2018/10/11/anti-asian-messages-spread-washington-university-st-louis (explaining a series of messages between Washington University in St. Louis students with one stating, “[w]hy are Asians invading our study room”).
. For Asian Americans, the model minority myth has created pressure for performance to require “super-achievement.” This norm of “super-achievement” and needing to distinguish oneself from the rest of the Asian American community can be debilitating. To add to this, when Asian Americans are told it is better to not check anything than to check the “Asian box” on a college application, this outward demonstration of society’s lack of acceptance can lead to negative self-image in young Asian Americans. See Jean S. Phinney, The Multigroup Ethnic Identity Measure: A New Scale for Use with Diverse Groups, 7 J. Adolescent Res. 156, 156–57 (1992) (describing that ethnic identity is central to the self-identity of minority individuals); Chew, supra note 49, at 84 (“Many Asian Americans believe that they are more likely to be successfully assimilated into American society if they do not publicly identify their minority status.”). See generally Joan E. Rigdon, Exploding Myth—Asian American Youth Suffer Rising Toll from Heavy Pressures: Suicides and Distress Increase as They Face Stereotypes and Parents’ Expectations, Wall St. J., July 10, 1991, at A1.
. Chew, supra note 49, at 73 (“They have pinned their hopes for economic survival on individual efforts rather than on collective political activities . . . .”). See generally Michelle Diggles, The Untapped Political Power of Asian Americans, Third Way (Jan. 15, 2015), https://www.thirdway.org/report/the-untapped-political-power-of-asian-americans (describing how and why Asian American political participation has lagged behind other racial and ethnic groups).
. See Agnes Constante, In California, Asian Americans Find Growing Political Power, NBC News (April 19, 2018, 5:42 AM), https://www.nbcnews.com/news/asian-america/california-asian-americans-find-growing-political-power-n866611 (illustrating the rise in Asian American political participation); Ross Douthat, Opinion, The Asian-American Age: At the Movies and in Court, a Rising Minority Claims the Spotlight, N.Y. Times (Sept. 1, 2018), https://nyti.ms/2MLuEyA (describing Asian American political participation with special focus on affirmative action).
Pitting racial minority groups against one another represents the worst form of divide-and-conquer political strategy. [Asian Americans] must refuse to believe that they are superior to Whites, non-Whites, or anyone else. . . . History teaches us that not long ago, the exact same criticisms were leveled at us: that we were the stupid, the unassimilable, the depraved, the criminal.
Id. (emphasis in original).
. Chin et al., supra note 80, at 133–34 (posing these same questions to white people). For the first question, Asian Americans can benefit from racial discrimination because while the model minority myth is damaging to Asian Americans, it is also damaging to other minorities by categorizing them as something less than “model.” In addition, Asian Americans benefit from affirmative action, both historically in the education context and continuously, in areas where there is “under-parity” of Asian Americans, such as in many professional contexts. Kidder, supra note 75, at 623–24. For the second question, the systematic and rampant racism against African Americans that stems from several historical factors including slavery, Reconstruction, Jim Crow laws, unequal prison sentencing, and de facto segregation means that the opportunity for the American Dream is not equally available for all minority groups. See Angela Hanks et al., Systematic Inequality: How America’s Structural Racism Helped Create the Black-White Wealth Gap, Ctr. for Am. Progress (Feb. 21, 2018), https://www.americanprogress.org/issues/race/reports/2018/02/21/447051/systematic-inequality. This does not invalidate discrimination felt by Asian Americans but should be clearly understood when considering this question.
From Volume 91, Number 2 (January 2018)
Although sometimes difficult to detect, governmental power abuses can have detrimental impacts. Property tax assessments provide an effective lens to examine this phenomenon because, given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. Michigan is an ideal case study because it protects property owners by making assessment-related power abuses more visible through a unique state constitutional provision: property tax assessments cannot exceed 50 percent of a property’s market value. Abuses have persisted nevertheless. Between 2011 and 2015, one in four properties in Detroit were subject to property tax foreclosure, and inflated property tax assessments that violate the Michigan Constitution are the unseen thread in this complex tapestry of foreclosure.
Against this backdrop, this Article makes three primary contributions. First, no other article has argued and proven that property tax assessments in Detroit are illegal. Using assessment and sales data from 2009–2015 for the entire City of Detroit, we find that property tax assessments are substantially in excess of the state constitutional limit, and this illegality is most pronounced for lower-valued properties. Second, to remedy inflated assessments, in 2014 and 2015 Detroit’s assessor implemented assessment decreases ranging from 5 percent to 20 percent for select districts, but we find that systemic assessment inequity persisted for lower valued properties despite these reductions. Third, this Article uses the case of illegal property tax assessments in Detroit to develop a new theoretical concept called “stategraft,” which is when state agents transfer property from residents to the state in violation of the state’s own laws and to the detriment of a vulnerable group. Although the concept was developed using the Detroit case, stategraft applies beyond Detroit to many other cases, including the discriminatory fines imposed and enforced by the police and courts in Ferguson, Missouri; broken treaties with Native Americans; and abuses of civil forfeiture laws.
TABLE OF CONTENTS
Local governments must determine the taxable value of properties in their jurisdictions, and these assessments are the basis of property tax calculations. Property taxes are a substantial source of revenue for local governments, so to protect property owners from paying more than their fair share, most jurisdictions require assessments to be uniform and/or equitable. But they are often neither. As a result, property tax assessments provide a unique and effective lens to study the larger phenomenon of governmental power abuses that are difficult for citizens to detect or defend against. This Article uses Detroit as a case study because the Michigan State Constitution goes beyond the equitable and uniform mandate, which is inexact and vulnerable to varying interpretations. Instead, the Michigan Constitution has an explicit cap on assessments that allows property owners to more easily detect assessment-related abuses. More specifically, the Michigan Constitution prohibits property assessments that exceed 50 percent of a property’s market value: “The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent . . . .” Although there have been several articles about property tax assessments in Detroit, no other article has proven that assessment practices in Detroit violate the Michigan Constitution.
More importantly, this Article uses the case of illegal property tax assessments in Detroit to develop a new concept called “stategraft,” which is when state agents transfer property from residents to the state in violation of the state’s own laws and to the detriment of a vulnerable group. Stategraft is a phenomenon that also applies beyond Detroit to various other cases, including discriminatory fines and fees levied by police and enforced by courts in Ferguson, Missouri; broken treaties with Native Americans; and abuse of civil forfeiture statutes.
Determining whether property tax assessments in Detroit are unconstitutional is an important research question for three primary reasons. First, in a typical property tax bill, the assessed value of each property is multiplied by the property tax rate, subject to various exemptions. Detroit residents endure the highest property tax rates in Michigan and some of the highest in the country. In addition, this Article shows that the majority of residential properties are unconstitutionally assessed at over 50 percent of the property’s market value. As a result, Detroit residents are being hit twice: not only are their assessed values illegally high, they are then multiplied by one of the nation’s highest rates. Many Detroiters have not been able to afford this double hit, and nonpayment has resulted in widespread tax foreclosure.
From 2011–2015, the Wayne County treasurer foreclosed on 100,116 Detroit properties for unpaid property taxes, although there are only about 384,675 properties in the city. This means that about one in four Detroit properties were subject to property tax foreclosure during this five-year period. In 2015 alone, the treasurer foreclosed on 28,158 Detroit properties. That is, in 2015, Detroit had 3,949 property tax foreclosures per 100,000 people, which is drastically higher than other cities (e.g., New York City: 52; San Francisco: 48; Los Angeles County: 8; Erie County (Buffalo), New York: 62; St. Louis County, Missouri: 197).
Since the primary economic asset of many Americans is their home, property tax foreclosure can have adverse financial impacts, but it can also have injurious emotional, social, political, and cultural consequences as well. Like many other material objects, homes exist in tandem with emotional landscapes, which suffuse them with significant intangible value. An individual’s childhood home, for instance, is often filled with memories and emotional investments such that when the home is foreclosed upon, a family loses more than an economic asset; their personhood is also impacted. Also, a house is often the basis of social belonging—a gateway to the benefits and burdens of community membership. As neighbors interact, valuable social bonds and networks are formed, and thus foreclosure often leads to social disruption. Politically, property serves as a bulwark against state encroachment on individual autonomy. Although people cannot remodel public buildings to reflect their individual tastes, walk around naked in federal buildings, or exclude others from a public parks at will, all of these activities are allowed in privately owned homes, where citizens have greater autonomy to live the kinds of lives they have reason to value. Foreclosure curtails this important source of autonomy. Foreclosure can also adversely affect cultural and identity interests. Individual and group identities are often closely tied to a particular home, neighborhood, or city, and a home, in particular, can reflect a person’s unique personality and become intertwined with her sense of self. In sum, when the state confiscates a home for nonpayment of property taxes, there are both monetary and non-monetary consequences.
Second, on average, Detroit’s residents are more economically and socially insecure than other Americans (see Table 1). Unconstitutional assessments inflate property tax bills, which can be a significant financial blow to this already vulnerable population—regardless of whether or not it causes them to lose their homes. In addition, less affluent owners are less likely to challenge property tax bills. Thus, when poorer homeowners are subject to unconstitutional assessments, these assessments are more likely to stand uncorrected. That is, invisible abuses of state power stand uncorrected. Consequently, poor homeowners—who are most unable to afford illegal and inequitable assessments—are the population that is most often subject to them.
Third, there is preliminary evidence suggesting that the unconstitutional assessments in Detroit are racially discriminatory. On July 13, 2016, the American Civil Liberties Union (ACLU) of Michigan, along with the NAACP Legal Defense Fund and the law firm of Covington & Burling, filed a lawsuit alleging that the unconstitutional property tax assessments and the resulting foreclosures in Wayne County (the taxing jurisdiction where Detroit is located) disparately impact African Americans, who constitute 82.7% of Detroit’s population. The lawsuit claims that Detroit’s assessor is unconstitutionally assessing property owners, while the assessors in Wayne County’s other jurisdictions—which are not majority African American—are not engaging in this unconstitutional behavior. Consequently, African-American homeowners “lose their homes through tax foreclosure at a higher rate than non-African-American homeowners in Wayne County,” violating the Fair Housing Act of 1968.
If the claims made in the lawsuit prove true, then unconstitutional assessments in Detroit are part of a long and sordid history of racially discriminatory property tax administration in the United States. In the Jim Crow South, officials routinely assessed property owned by African Americans at a higher proportion of its market value than they did white-owned property, leading to high property tax payments—paradoxically used to fund institutions and services that the state prohibited African Americans from accessing. Also, when their real estate became valuable or officials wanted to punish them for civil rights protest actions, one conventional mechanism for dispossessing African-Americans was to inflate property tax assessments. Unfortunately, these abuses of governmental power did not perish along with the Jim Crow South. A 2004 study of property tax assessments in New Haven, Connecticut found that in communities where African Americans and Latinos constituted the majority of residents, assessments were on average 40 percent higher than the market value of the homes. In contrast, for neighborhoods occupied predominately by white residents, assessments were on average 20 percent less than the market value of the homes.
This Article proceeds in five parts. In Part I, we examine the legal framework for assessments in Michigan. We then review the literature and discuss our methodology in Part II. In Part III, we analyze the data. Using assessment and sales data from 2009–2015 for the entire City of Detroit, we provide a dynamic view of how assessment inequity has changed during the life cycle of the housing crisis and the mayor-led, across-the-board cuts in property tax assessments, which occurred in 2014 and 2015. We find strong evidence of unconstitutional assessments across all the years studied. But assessments for lower-valued homes are substantially higher than 50 percent of their market value, while assessments for higher-valued homes are closer to this state constitutional standard. Although we offer some explanatory hypotheses in Part IV, we leave it to future research to determine the economic and political forces that brought about this pervasive unconstitutionality and why it has persisted for so long. In the short term, we recommend that Detroit place a moratorium on tax foreclosures for homes that are owner-occupied until it can ensure that it is in compliance with the Michigan Constitution. The City of Detroit must also ensure that property taxes owed by tax-delinquent homeowners are accurate. Finally, in Part V, based on the Detroit case, we develop a new concept called “stategraft.” More importantly, we demonstrate how this concept applies beyond Detroit.
By law, all taxable properties in the City of Detroit must be assessed on an annual basis by the city’s assessment division. In 1963, Michigan approved a new constitution, which drastically changed the procedure for determining the assessed value of properties. According to Article IX, Section 3 of the state constitution:
The legislature shall provide for the uniform general ad valorem taxation of real and tangible personal property not exempt by law except for taxes levied for school operating purposes. The legislature shall provide for the determination of true cash value of such property; the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 percent; and for a system of equalization of assessments.
This constitutional provision goes on to say that property tax assessments may be even lower than 50 percent of the property’s true cash value because assessments can increase by no more than 5 percent per year so long as the property is not sold. In addition, the 1978 Headlee Amendment placed additional limits on local taxing powers, including voter approval for increases in property tax rates (also known as millage rates) that go beyond the Amendment’s guidelines.
The Michigan legislature codified Article IX, Section 3 of the state constitution in Section 211.27a(1) of the Michigan Compiled Laws: “[e]xcept as otherwise provided in this section, property shall be assessed at 50% of its true cash value.” The legislature has defined true cash value as “the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale . . . .” The Michigan Supreme Court has declared that true cash value and fair market value are synonymous, and this is now a well-settled principle. Consequently, if Detroit properties are assessed at more than 50 percent of their fair market value, there is a direct breach of the state constitution and supporting legislation.
It is also well established that assessors are allowed to use diverse appraisal methods to determine a property’s market value. The legislature did not designate a specific valuation method for determining a property’s true cash value, and so the task of determining which approach is most appropriate for any given context has fallen to the Michigan courts. As the Michigan Supreme Court explains, “[a]ny method for determination of true cash value which is recognized as accurate and reasonably related to fair market valuation will fill the statutory prescription and is an acceptable indicator of true cash value.”
The courts have recognized three standard approaches: (1) the cost-less-depreciation approach, (2) the sales-comparison or market approach, and (3) the capitalization-of-income approach. More importantly, the courts have made clear that whichever approach is used, “[t]he ultimate goal of the valuation process is a well-supported conclusion that reflects the study of all factors that influence the market value of the subject property.”
For appraisals of residential housing, the industry standard is the market approach, which determines a property’s true cash value by analyzing recent sales of comparable properties. This approach requires assessors to adjust the sale price of comparable properties, taking into consideration factors such as the property’s size, age, condition, location, existing use, zoning, natural assets, and present economic income. One potential drawback of the market approach is that, in certain instances, the sale price might not be the “usual selling price” due to factors personal to the parties. For instance, it is not uncommon for parents to transfer property to their children at discounted rates. Nevertheless, when the assessor considers the sale prices of numerous comparable properties, she reduces the likelihood that factors extrinsic to the properties will impact price calculations.
In addition to having a robust sample of properties, the law requires assessors to include only arm’s length transactions—which is when there is a willing buyer and a willing seller and, thus, the sale price reflects the demand and supply for property in the market. There is, however, an exception for instances where auctions are the “common method of acquisition” for properties in the area. Although our data show that auctions have become a common method of acquisition, our estimates rely only on arm’s length transactions so that they are as conservative as possible. Consequently, we use arm’s length residential sales transactions alongside assessment data to determine whether Detroit is complying with the state constitutional mandate to assess each property at no more than 50 percent of its market value.
Several state constitutions require property tax assessments to be uniform and equitable. But, by requiring that assessed value/market value ratio not exceed 0.5, Michigan’s constitution is one of the few to use an explicit assessment ratio to constrain its local governments. Our review of every state constitution shows that Louisiana, Mississippi, Oregon, New Mexico, Oklahoma, and Tennessee are the only other states to constitutionally require localities to assess properties at a specified fraction of their market value. Given that these types of constitutional provisions are uncommon, how did this cap on assessed values end up in the Michigan constitution?
The historical evidence suggests Michigan’s constitutional drafters feared that without a specific constitutional provision, localities would abuse their powers and inequitably assess properties. One delegate from the 1962 constitutional convention—which was charged with drafting Michigan’s current state constitution, enacted in 1963—wrote, “[w]ell, there was very widespread distrust of the Legislature and people said, ‘leave it up to the Legislature and nothing will be done or it will not be done right. Let’s put it right in the Constitution and then we know the matter will be taken care of.’” Thus, the very purpose of the Michigan Constitution’s explicit mandate that property tax assessments cannot exceed 50 percent of a property’s market value was to prevent local governments from abusing their discretionary powers.
Michigan’s prior (1908) constitution required localities to assess all properties at full cash value, but according to Barlowe:
Wide variations exist in the extent to which assessors abide by this provision. Assessment data studies conducted in recent years show that some properties are assessed at as little as two per cent of their market values while others are sometimes assessed at more than their full market sale values. Township, city, and county equalized assessments frequently represent levels of between 30 and 50 per cent of cash value.
The issue of assessment inequity was so important that the governor, John Swainson, filed a report at the 1962 constitutional convention, detailing the unanimous findings of his Special Commission on Industrial Development Legislation: assessments varied widely and resulted in non-uniform property taxes that ultimately deterred investment.
To address the well-documented assessment inequities, the Committee on Finance and Taxation introduced an amendment at the convention. According to the Committee, the state’s 1908 constitutional provision allowed the court to “simply state that since the former taxpayer is not assessed in excess of 100%, the Constitution affords no basis for relief. This unavailability of judicial relief has made the cash value standard a positive impediment to the achievement of uniform assessment.” Consequently, the Committee drafted an amendment explicitly stating that property assessments were not to exceed 50 percent of the property’s market value. The committee suggested that 50 percent was the appropriate limit because it was “currently used by the State Tax Commission,” and it said that the standard was not unduly inflexible because the legislature would still have the ability to “change the standard to reflect changes in the general price structure.” The committee set the start date for this provision in 1966, as an acknowledgment that some jurisdictions currently relied on assessments above 50 percent.
A minority faction disagreed with the 50 percent limit and crafted a counter-amendment to delete it.  The faction’s critique of the 50 percent limit was based on issues of sufficient revenue for local governments, the proper role of the legislature, and the effectiveness of the 50 percent limit in actually providing relief to taxpayers. First, the minority report predicted “devastating immediate effect on the fiscal affairs of some communities.” Second, the minority report argued that setting a fixed limit to assessment levels was not the role of the constitutional convention: “The inclusion of an arbitrary 50% limitation, statutory in nature, does not have the dignity of a mandate of the people, as does the sales tax rate limitation, expressed in a referendum.” Third, the report argued that the 50 percent level did not make practical sense. Its authors argued that just because the State Tax Commission had used 50 percent as the proper assessment level when equalizing taxes among units of government did not mean that assessments should now be limited to 50 percent. The report’s authors also argued that while using a 50 percent limit would reduce taxes for some individuals and industries, it would increase taxes for others because all assessments would be brought closer to 50 percent in an attempt to make up for the lost revenue. The counter-amendment, however, was handily defeated 84 to 43.
Today, Detroit cannot continue to ignore the clear and unequivocal limit on assessments, which withstood vigorous democratic debate to earn its place in the Michigan Constitution.
The Minnesota Center for Fiscal Excellence estimates that Detroit properties are subject to effective tax rates of 3.82%, more than double the national urban average of 1.5%. Given Detroit’s notoriety for high property tax rates, there have been several studies examining this. We, however, specifically build upon studies exploring assessment inequity in Detroit because our goal is to determine whether the city is complying with its state constitutional mandate to assess properties at no more than 50 percent of their market values. For example, several economists have examined assessment inequity among Detroit residents using assessment and market data from 2010. They observed severe over-assessment and regressivity at levels not previously observed in the United States. In addition, Dewar et al. compared assessed values and sales prices in one Detroit neighborhood, Morningside, from 2008 to 2013. They found that although market values declined over this period, assessments did not keep pace. They also found that lower-valued homes were more likely than higher-valued homes to be significantly over-assessed during this period.
Unlike the existing literature, our study provides a dynamic view of property tax inequity across all Detroit neighborhoods over a seven-year period, and we discuss the legality of the inequities we observe. In doing so, we make three unique contributions to the existing literature. First, we examine how assessment inequity has changed through time for the entire City of Detroit. Second, in response to prior evidence of over-assessment, Detroit’s assessment office tried to remedy this by implementing assessment decreases for two consecutive years, resulting in planned assessment reductions of 5 to 20 percent for select districts each year. We examine whether systemic assessment inequity persisted despite these reductions. Third, we examine how Detroit’s inflated assessments contravene the Michigan Constitution.
The International Association of Assessing Officers (“IAAO”) has outlined the appropriate methods for analyzing assessment accuracy, and there are two major components: level and uniformity. Level refers to the overall assessment ratio, defined as a property’s assessed value divided by its market value. Two key statistics for analyzing assessment ratios are the mean and median. Given Michigan’s constitutional requirement that assessments should not be greater than 50 percent of market value, the mean and median levels of assessment are expected to be no higher than 0.5. If the ratios derived are consistently higher than 0.5, then this is reliable evidence that assessments in Detroit are systematically illegal, and the assessing officials must take corrective action.
In contrast, uniformity (also known as variability) refers to the degree to which assessment ratios have achieved horizontal and vertical equity. Horizontal equity means that properties similarly situated in terms of market value and type of neighborhood have similar assessment ratios, while vertical equity means that higher and lower priced properties have similar assessment ratios. Horizontal and vertical inequity occur when assessment ratios vary widely. There are two methods for analyzing assessment uniformity: the Coefficient of Dispersion (“COD”) and the Price Related Differential (“PRD”). The COD measures horizontal equity by quantifying the degree to which the assessment ratios deviate from the median. The IAAO considers assessments uniform if the COD is between 5 and 15 for single-family residential properties. The PRD is a measure of vertical equity. If high-value properties have lower ratios than low-value properties, the vertical inequity is termed regressive; if the opposite occurs, it is called progressive. Assessments should be neither regressive nor progressive because—although a degree of variation between ratios is expected as well as accepted—large differences result in the non-uniform and inequitable application of property tax assessments. The PRD is calculated by dividing the mean ratio by the weighted mean ratio (the total assessed value of all property divided by the total sale price). According to the IAAO, PRDs between 0.98 and 1.03 are vertically equitable while values greater than 1.03 are regressive, and values less than 0.98 are progressive.
Beyond the IAAO’s standard measures, a simple approach for examining horizontal and vertical equity is to estimate the mean, median, minimum, and maximum assessment ratios across sale price quintiles. This allows further analysis within a quintile (horizontal equity) and an examination of how ratios vary across quintiles (vertical equity). In Michigan, if the mean and median are less than or equal to 0.5 within a quintile, then horizontal equity is present and the assessments are systematically constitutional. If mean and median assessment ratios are no higher than 0.5 across quintiles, then the assessments are vertically equitable and constitutional.
Our proposed method of analysis is called an assessment ratio study (also known as ratio study or sales ratio study), which is the primary mechanism that assessors, taxpayers, appeal boards, and taxing authorities use to determine if assessments meet the legal requirements of a jurisdiction. IAAO defines an assessment ratio study as “a form of applied statistics, because the analyst draws conclusions about the appraisal of the population (the entire jurisdiction) of properties based only on those that have sold during a given time period.” If the unsold parcels are appraised in the same manner as the sold ones, then it is valid to use the statistics derived from the sales ratio study to infer appraisal performance for unsold parcels. Our evidence shows that homes selling during the period under study are comparable to homes that did not sell. For example, the average age of all improved, taxable, residential property was 81.46 years, and the average age of our trimmed 2015 sample was 81.61 years.
Since assessments in Detroit are calculated annually and are based on property values from the previous year, we divided assessed values with prior year sales information to produce assessment ratios. That is, we match assessment data from each year (2009–2015) with sales data from the prior year (2008–2014). For properties that were sold multiple times in the same calendar year, we took the last sale in a year as the determinant of the property’s value. As a result, the full dataset includes 123,400 residential property transactions (we exclude empty lots and non-taxable properties). The breakdown of data by year can be viewed in column (1) of Table 2. Data Driven Detroit provided parcel-level information on assessed values for all Detroit properties from 2009 to 2014. We used the City of Detroit’s Open Data Portal to secure data on all property sales in Detroit from 2008 through 2014, as well as assessed values for 2015.
For several reasons, we excluded 117,214 observations from the sample, leaving a total of 6,186 arm’s length property transactions in our analysis (column (2) of Table 2). First, our dataset included twenty-two different sales terms defined by the assessor’s office, and we excluded properties that were not arm’s length transactions. Although the law states that only arm’s length transactions should be included, there is an exception if non-arm’s length transactions (distressed sales) “have become a common method of acquisition in the jurisdiction for the class of property being valued.” Given that only about 5 percent of sales from 2008–2014 were arm’s length transactions (see Table 2), there is a strong argument that distressed sales are, in fact, the common method of acquisition for residential properties in Detroit. Nevertheless, we only include arm’s length transactions so that our estimates provide the most conservative measure of unconstitutionality. Scholars who include distressed sales in their analysis will only find unconstitutionality that is markedly more pronounced because these transactions involve smaller sums.
Second, we excluded properties that were bundled and sold as a single transaction because it is impossible to determine the price of any single property within the bundle. Bundled properties are different parcels with identical sellers, sale dates, and sale prices. Third, we excluded properties that had a sale price of zero because it is unlikely that these were arm’s length transactions; we also excluded properties with an assessed value equal to zero because these are likely to be non-taxable properties.
Although excluding 95 percent of the total observations may seem extreme, this is a result of the forced auctions and other non-arm’s length transactions that have proliferated in Detroit’s distressed real estate market. In addition, we further trimmed the data in accordance with IAAO’s nationally recognized standards, which recommend trimming the sample of statistical outliers because very low or high ratios can severely distort the analysis. We show the total observations after trimming in column (3) of Table 2, and the percentage of trimmed observations in column (4). The number of observations we excluded from our sample due to outlier trimming is below the IAAO’s recommended standard of 10 percent.
Table 3 shows the mean and median assessment ratios; the COD and PRD, which measure the uniformity and variability of the ratios; and the average sale prices for each year, highlighting changing market conditions. We also include the percentage of assessment ratios that are above the 0.5 constitutional limit to evaluate the quantity of unconstitutionally assessed properties. Table 3 provides substantial evidence that Detroit assessors are unconstitutionally assessing properties in a systematic fashion. First, for properties sold between 2008 and 2014, the majority of assessments violated the Michigan Constitution: 2009 (65%); 2010 (84%); 2011 (53%); 2012 (73%); 2013 (78%); 2014 (83%); 2015 (65%). Second, data from the assessment ratio study—which is required for making inferences about properties that were not sold during the period—show that the mean and median assessment ratios are greater than the constitutionally permitted ratio of 0.5. While the 2011 and 2012 ratios are closer to 0.5, they remain statistically larger than 0.5 when the margin of error is set at the 95% confidence level. Third, the COD for each year is much higher than the recommended maximum of 15, which is evidence that assessments are not uniform. In addition, the PRD for each year is above 1.03, which is evidence of regressivity (i.e., higher-valued properties have lower ratios than lower-valued properties). Again, we see the COD and PRD for 2011 and 2012 are closer to the recommended levels, yet remain above it.
Upon examining Table 3, one question remains: Why are 2011 and 2012 closer to the constitutionally permitted ratio of 0.5 while in the other observed years the ratios suggest even greater unconstitutionality? We provide two potential explanations. For one, the assessor classified fewer sales as arm’s length transactions in 2011 and 2012: it classified 1.7% and 3.6% of the total number of transactions as arm’s length for 2011 and 2012, respectively, whereas it classified between 2.6% and 12.4% of transactions as arm’s length in the other years. Second, median sale prices derived from the assessor’s data are much higher in 2011 and 2012 compared with the surrounding years. More importantly, the assessor’s sales data from 2011 and 2012 are not consistent with sales information from Zillow market data in these years, despite consistency between the two data sets in the other years. To check our two explanations, we did a separate analysis that included sales labeled as “Review Needed,” a sales term used for transactions that the assessor did not have enough information to classify, and the number of observations and the average sale prices became consistent with the surrounding years; in addition, the average sales prices for 2011 and 2012 became consistent with Zillow market data. With the stated correction, the average assessment ratios would increase to 3.65 and 4.90 for 2011 and 2012, respectively, suggesting there was substantial unconstitutionality in 2011 and 2012.
Table 3 also provides mixed results concerning the across-the-board assessment reductions discussed by Mayor Duggan. There is no evidence of cuts in 2014 because the mean ratio increased by 10 percent. Furthermore, vertical inequity worsened as the PRD increased in 2014, while the COD declined only slightly. However, overall assessment ratios declined in 2015 by approximately 26 percent, resulting in reductions that were larger, on average, than the 5 to 20 percent reduction the mayor expected. Despite the large reductions, vertical inequity persisted as the PRD remained above 1.03 (at 2.45), and horizontal inequity actually worsened as the COD increased to 125.36 (up from 107.34).
To further explore assessment practices in Detroit, Table 4 provides simple snapshots of how assessments vary within and across sale price quintiles by showing the mean, median, minimum, and maximum assessment ratios. We highlight the average sale price of each quintile in the row labeled “Mean SP,” and the percent assessed above the constitutional 0.5 limit is in the row labeled “%>0.5”. The most important finding shown in Table 4 is that average assessment ratios decline as property values increase. That is, Detroit’s assessors are unconstitutionally assessing lower-valued properties by a substantial margin, while the assessment ratios for higher-valued property are at or even below the constitutionally permitted limit of 0.5. Specifically, the lowest-valued properties in 2009 were, on average, assessed at levels almost eighteen times larger than the constitutionally permitted 0.5 limit (8.87); middle-valued properties were assessed three times more than the constitutionally permitted limit (1.54); and the highest-valued properties were assessed below the constitutionally permitted limit (0.4). In addition to this stark evidence of vertical inequity, assessment ratios are less uniform for lower-valued property (ranging from 0.25 to 36.29) compared with higher valued property (ranging from 0.04 to 1.6), providing evidence of regressive horizontal inequity. These results are generally consistent across all years; however, for reasons mentioned earlier, 2011 and 2012 ratios are closer to 0.5.
Table 4 further explores how Detroit Mayor Mike Duggan’s across-the-board reductions in property assessments—ranging from 5 percent to 20 percent, depending on the district—affected the ratios. Table 4 provides some evidence of reductions in 2014, with mean assessment ratios decreasing in quintiles 1, 2, and 5, while reductions were higher than the mayor projected for 2015. Specifically, Table 4 shows reductions ranging from 12% to 47% in 2015, depending on the quintile viewed. More importantly, Table 4 shows that even after the reductions, the vast majority of lower-valued properties had an average assessment ratio equal to 3.29, not even close to the 0.5 level, while higher-valued properties—which already had ratios closer to the constitutionally permitted limit of 0.5—received reductions that brought assessments to an average ratio of 0.29. As a result, for quintile 1, assessed values were, on average, $18,507 above the constitutional limit, a pattern repeated in quintiles 2 ($19,900), 3 ($13,796), and 4 ($4,890). But quintile 5 was, on average, assessed below the constitutional limit by $10,881.
We use two specific properties to better illustrate how owners of lower-valued properties are bearing the undue burden of unconstitutional assessments. In the first example, the public record shows that a property located at 15455 Artesian Street sold in 2009 for $10,000; the assessor marked this sale as an arm’s length transaction. Nevertheless, the assessed value of that property in 2010 was not $5,000 (50 percent of the property’s market value), but rather $36,094, which is 7.2 times the constitutional limit. In a contrasting example, the public record shows that, in 2008, a property located at 4127 Buckingham Avenue sold for $115,000 in an arm’s length transaction. The assessed value in 2009 was $41,369, which is $16,131 below the constitutional limit.
As a final mechanism for examining assessment trends in Detroit, Table 5 highlights the changes in average assessment ratios across districts. Because it is district specific, Table 5 is the one place we see evidence of Mayor Duggan’s 2014 assessment reductions: District 2 (25%), District 3 (12%), District 7 (20%), District 9 (35%), and District 10 (24%). The remaining districts experienced persistent over-assessment with no correction. In 2015, assessments decreased between 10% and 69% for all districts excluding District 8 (40% increase).
In sum, we find that the Detroit assessor is systematically assessing Detroit homeowners at levels that violate the Michigan Constitution. Even though we argue that the 2011 and 2012 sales data were inconsistent, we nevertheless find substantial unconstitutionality using this faulty data.
The lingering question is: why has the Detroit assessor’s office systematically violated the Michigan Constitution? Although this question is beyond this Article’s scope, there are four possible answers. The first hypothesis is that the assessor’s office lacked the capacity to conduct the legally required market-based annual assessments, and thus new assessments were based on non-market related, incremental adjustments to existing assessments. This makeshift method based on conjecture became completely unworkable in 2008 when property values plummeted in Detroit (See Figure 1) and the chasm between incrementally adjusted home prices and actual home prices widened sharply. While the assessor relied on Detroit residents to appeal incorrect assessments, research shows that poor people are less likely to appeal their property tax assessments; and when they do, they have lower success rates than wealthier people.
The Auditor General’s Performance Audit shows that the Detroit Assessor’s office lacked capacity to do its job properly. The report’s authors state:
As a result of our audit, we have concluded that the overall operation of the Assessments Division falls short of their goals and objectives. Moreover, guided by the State Tax Commission’s 14-Point Local Unit Review (of assessing units), we found that the Division’s assessing operations are inefficient, ineffective, and lacking in some areas of its assessing activities.
The report’s findings are jaw dropping. For instance, auditors found that about 1,700 properties were still classified as tax exempt although they were no longer owned by the city. Also, according to a representative from the Buildings, Safety Engineering and Environmental Department, over 70 percent of the tickets this department issued for blight violations were dismissed because the property ownership information it received from the assessor was incorrect. In sum, the Auditor General’s report paints the Detroit Assessor’s office as a highly incompetent, inefficient, and broken bureaucracy, lacking the capacity to fulfill its mission.
The second hypothesis is that although there are various community organizations working on the property tax foreclosure crisis, community activists were unable to hold the Detroit assessor accountable because they were unaware of the state constitutional provision or they did not have access to the data and empirical skills necessary to prove systemic unconstitutionality.
The third hypothesis is that it is easier for Detroit to raise revenues by illegally assessing residents than by legally raising property tax rates. A Michigan constitutional amendment—the 1978 Headlee Amendment—requires voter approval for increases in property tax rates that go beyond the Amendment’s guidelines. Given the property tax rate is already one of the highest in the nation, it may be challenging to get voters to approve a hike. In contrast, Wayne County reimburses Detroit for any property tax revenue that it fails to collect; in exchange, the county receives the right to collect the revenues (with penalties and interests) and to confiscate the home if payment is not forthcoming after three years of delinquency. Without this arrangement, the Detroit officials would be incentivized to legally assess residents, which would decrease revenues but increase the probability that people would be able to afford their property taxes. With this arrangement, the city has a short-term incentive to make assessments high and extract as much money as possible to fill budget shortfalls, even though this is not in the city’s long-term interest because tax foreclosure devastates neighborhoods.
A fourth hypothesis is that even when the county does not make much money from the foreclosure auction sales, the county makes significant sums of money in late fees and interest, which is supposed to go into the Delinquent Tax Revolving Fund. The Fund should be used solely for foreclosures, but Wayne County has been using the Fund to fill its chronic budget shortfalls and to recover from its recent financial emergency. Consequently, the financially distressed county has come to rely on property tax foreclosures in Detroit to stay afloat.
These four hypotheses attempt to explain why Detroit has been unconstitutionally assessing its residents, but they have not yet been empirically confirmed or refuted. We leave this for other scholars to investigate.
The findings of the study are clear: The City of Detroit is assessing homeowners in violation of the Michigan Constitution. More significantly, city and county coffers have benefitted greatly from this theft. But, in many ways, Detroit’s illicit actions are not unique. It is not unprecedented for state agents to increase state revenues using illegal means, and we create the term stategraft to describe this phenomenon. Stategraft is when state agents transfer property from residents to the state in violation of the state’s own laws and to the detriment of a vulnerable group. The term intentionally combines the words statecraft and graft or corruption. A widely agreed-upon definition of corruption is “[t]he abuse of an entrusted power for private gain,” but stategraft is different because there is no private gain. Instead, the abuse of state power primarily benefits the state itself. Statecraft is the art of conducting state affairs, but stategraft highlights instances when state agents advance the state’s financial interests by stealing from those under its authority.
The term stategraft was born from the case of property tax injustice in Detroit. Detroit assessors are state agents who imposed inflated property tax assessments on Detroit property owners, and this act has transferred millions of dollars from property owners to city and county coffers in violation of Michigan’s state constitution. There are, however, several other poignant examples of stategraft. To initiate the conversation, we will discuss three.
The first example is lands taken from Native Americans in direct violation of a valid treaty. For instance, the Oneidas once occupied about six million acres in what is now New York. Likewise, the Black Hills of South Dakota once belonged exclusively to the Lakota Sioux who considered it sacred land. In both cases, U.S. state agents entered into legally binding treaties with the tribes but then later reneged and commandeered native lands, illicitly increasing their nascent nation’s territory. That is, the state itself (not private actors) benefitted from property illicitly taken from a vulnerable group. Prior to the introduction of the term stategraft, there was no vocabulary to discuss this phenomenon.
Second, the Department of Justice (DOJ) has sued the City of Ferguson for what amounts to stategraft. The DOJ argues that Ferguson’s police have engaged in unconstitutional policing that targets African Americans and unfairly imposes civil and criminal fines on them. Instead of reining in the unlawful police conduct, the courts issued arrest warrants when the fines went unpaid, advancing the city’s financial interest and foregoing their role as neutral arbiter. It is the City of Ferguson itself, rather than individual police officers or judges, which financially benefits from the unconstitutional policing of African Americans: a classic case of stategraft.
The third and final example of stategraft is the abuse of civil forfeiture laws. These laws are meant to allow law enforcement to confiscate property obtained unlawfully and to use the proceeds in the fight against crime. Nevertheless, in many cities, civil forfeiture has been abused, and police officers illegally seize the property of people never charged or convicted of any crimes. When the opaque legal process that individuals must traverse to regain their property is more costly than the property taken, the police department often keeps the property. For instance, in 2013, the Washington, D.C. public defender service filed a lawsuit against the district on behalf of 375 car owners who shared one thing in common: the police confiscated their vehicles but did not charge them with crimes. The district court granted a preliminary injunction in the case, finding that the main plaintiff was likely to prevail on his claim under the Due Process Clause in the US Constitution. Given the constitutional violations brought to light by the suit, the parties settled the case after the City agreed to modify its forfeiture laws. More significantly, this is a classic case of stategraft because police officers abused civil forfeiture laws and confiscated cars from innocent people whose poverty rendered them unable to recover their vehicles. Most importantly, it was the police department itself (rather than individual officers) that financially benefitted from this illicit action.
This list of examples is not meant to be exhaustive; instead, the goal is to highlight the pervasiveness of stategraft, which has five principle elements: (1) state agents, (2) transferring property, (3) from residents to the state, (4) in violation of the state’s own laws, (5) to the detriment of a vulnerable group.
State agents. “State agents” are individuals or groups who use the state’s police powers to compel people to act or refrain from taking certain actions. When working in their official capacity, state agents either have the power to make laws, policies, and administrative rules, or are acting upon the explicit directions of those with the power to do so. But in their unofficial capacity, state agents promote the state’s financial interests without explicit permission from lawmakers, who either look the other way or support their actions without directly authorizing them. In Ferguson, for example, the targeting of African Americans for fees and fines was not an official written policy, but it was a pervasive practice which used the police and courts to enlarge city coffers.
Transferring property. Property includes tangible property such as money, financial instruments, real property, and personal property. It also includes intangible property like entitlements, licenses, and intellectual property. Property transfer can involve taking away the right to use, exclude, or transfer property, or taking the property itself. In the three examples discussed above, the American government took land from native Americans; the city of Ferguson took money away from its African-American citizens using discriminatory fees and fines; through civil forfeiture, many cities have taken all types of real and personal property away from people not charged with a crime; and illegal property tax assessments have led to inflated property tax bills in Detroit.
From residents to the state. For these purposes, a “resident” is anyone who is subject to the state’s police powers, even if the person is not physically within the state’s geographic boundaries. To qualify, property must be transferred from residents directly or indirectly to state accounts. For instance, land usurped from Native Americans went to U.S. federal and state governments; fees and fines charged by Ferguson enlarged that city’s coffers; and property taken through civil forfeiture benefits the law enforcement agencies that confiscate the property.
In violation of the state’s own laws. Laws include legislation, judicial decisions, administrative rules, and policies that have the power to bind residents and regulate their actions. Only the law in effect at the time the property was taken is relevant. In the examples above, police officers abuse civil forfeiture laws to illegally confiscate property, the US government abrogated legally binding treaties with Native peoples; the DOJ has argued that the City of Ferguson contravened the Equal Protection and Due Process clauses of the US constitution; and the Detroit assessor violated the Michigan Constitution’s property tax assessment limits.
To the detriment of a vulnerable group. If the state breaks a law, then ideally citizens can go to the courts, police, or other state functionaries to correct the injustice. A vulnerable group is one that occupies a subordinate position within the polity, so they are often unable to identify or resist stategraft due to limited financial resources, lack of access to justice, and inadequate information. That is, vulnerability makes groups more likely to experience stategraft and also less able to combat it when it does occur. Tax injustice in Detroit is the perfect example. Our data show that homeowners with lower-valued homes experienced unconstitutional property tax assessments at a far greater rate than homeowners with higher-valued homes. This is because people with more information and resources had the ability to hire lawyers and other intermediaries to assist with appealing their property tax assessments and averting stategraft. But due to lack of information and resources, Detroit’s established appeals process was unavailable to the most vulnerable populations.
Stategraft is a valuable concept because existing categories do not well describe this phenomenon. The most common definitions of corruption are predicated on private gain, and there is currently no concept to describe state-led theft that primarily benefits the state. Constitutional takings is a category ill-equipped to describe the phenomenon because while sometimes instances of stategraft qualify as a takings, other times they do not. For instance, while courts have ruled that certain broken treaties with Native Americans violated the Fifth Amendment’s Takings Clause, illegal property tax assessments in Detroit would most likely not qualify because courts have ruled that the state’s tax-and-spend powers do not infringe upon the Takings Clause. Courts have also ruled that civil forfeiture does not run afoul of the taking clause. Lastly, because stategraft, by its definition, involves an illegal transfer of property, the due process clauses of the Fifth and Fourteenth Amendments will always apply. Stategraft, however, is a unique type of due process violation that deserves focused analysis because when a state steals from its own citizens, this has dire consequences for a nation’s democratic foundations. Consequently, stategraft is a theoretical framework that fills an important gap in the literature. We have provided the theoretical scaffolding for the concept of stategraft, upon which other scholars can build.
Property tax assessments provide a penetrating lens into governmental abuses of power that elude detection. Given the complexity of calculating property tax assessments, it is difficult for citizens to know when local government has exceeded its legitimate taxing authority and crossed into the realm of illegal extraction. By assessing properties in violation of the Michigan Constitution, Detroit has crossed this line and is engaging in stategraft. The illegality is systemic and has persisted since 2009, which is when property values in Detroit declined precipitously. In 2014, the City of Detroit recognized the need to comply with its state constitution by correctly aligning assessments with property values. Consequently, in 2014 and 2015 Mayor Duggan announced across-the-board cuts to property assessments. Nevertheless, lower-valued properties are still assessed far in excess of 50 percent of their market value, while the assessed values for higher-valued properties have fallen below this constitutional limit.
The illegal assessments in Detroit have severe consequences, the most dire being that it has unleashed a property tax foreclosure epidemic. Based on our analysis, we recommend that Detroit place a moratorium on property tax foreclosures of owner occupied homes until it can ensure that it is in compliance with Michigan’s constitutional and statutory laws. At the very least, Detroit must ensure that delinquent taxpayers—on the verge of foreclosure—are not subject to unconstitutional tax assessments and inflated property tax bills. More significantly, we encourage the City of Detroit to begin a dialogue with its citizens about how to heal from the social, economic, and psychological consequences of stategraft.
[*] *. Professor of Law, Chicago-Kent College of Law; Research Professor, American Bar Foundation.
[†] †. Assistant Professor of Economics, Oakland University. The authors give their sincere thanks to the following people who gave this Article a close read and provided helpful comments: Robert Ellickson, Carol Rose, Lee Anne Fennell, Joseph Singer, Evelyn Brody, Tracy Gordon, and Gary Sands. The authors are grateful for the opportunity to have presented this paper at the Property Works in Progress (PWIP) conference at Boston University and the Empirical Critical Race Theory Conference at Yale Law School, as well as in faculty workshops at the University of Iowa College of Law, Vanderbilt University Law School, University of Michigan Law School, University of Windsor Faculty of Law, University of Georgia School of Law, and the American Bar Foundation. A heartfelt thanks to Data Driven Detroit and Loveland Technologies, which were instrumental in acquiring the data used in this Article. Last but not least, we would like to thank our research assistants, Roisin Duffy-Gideon and Ayla Syed, for their exceptional work. The National Science Foundation funded this research.
. See Glenn Fisher, The Worst Tax?: A History of the Property Tax in America 152, 188 (1996). See, e.g., Pa. Const. art. VIII, § 1 (“All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.”); Utah Const. art. XIII, § 2 (“[A]ll tangible property in the State that is not exempt under the laws of the United States or under this Constitution shall be: (a) assessed at a uniform and equal rate in proportion to its fair market value, to be ascertained as provided by law . . . .”).
. See Lee Harris, Assessing Discrimination: The Influence of Race in Residential Property Tax Assessments, 20 J. Land Use & Envtl. L. 1, 3–4 (2004). See generally Olha Krupa, Housing Crisis and Vertical Equity of the Property Tax in a Market Value-Based Assessment System, 42 Pub. Fin. Rev. 555 (2014) (discussing increases in vertical inequity in Indiana as a result of corrupt property tax assessments); Carmela Quintos, Improving Assessment Equity in Mass Appraisal Models, 11 J. Prop. Tax Assessment & Admin. 53 (2014) (affirming that knowledge-based, methodological problems, as well as logistical, administrative problems associated with tax assessments, frequently compromise both vertical and horizontal equity).
. See, e.g., Itai Beeri & Doron Navot, Local Political Corruption: Potential Structural Malfunctions at the Central-Local, Local-Local, and Intra-Local Levels, 15 Pub. Mgmt. Rev. 712, 720–21, 729, 735 (2013); Brian Rapp & Frank Patitucci, Improving the Performance of City Government: A Third Alternative, 6 Publius 63, 76–77, 89 (1976); Shelley Ross Saxer, When Local Government Misbehaves, 2016 Utah L. Rev. 105, 115–18 (2016).
. Mich. Const. art. IX, § 3. See also Mich. Comp. Laws § 211.27(a)(1) (2013).
. E.g., Gary Sands & Mark Skidmore, Lincoln Inst. of Land Policy, Detroit and the Property Tax: Strategies to Improve Equity and Enhance Revenue 3 (2015) (proposing strategies to increase tax revenue and mitigate inequity in property tax assessments); Timothy R. Hodge et al., Assessment Growth Limits and Mobility: Evidence from Home Sale Data in Detroit, Michigan, 68 Nat’l Tax. J. 573, 590–91, 595–96 (2015) (concluding that Michigan’s assessment growth cap makes property sales less likely); Timothy R. Hodge et al., Assessment Inequity in a Declining Housing Market: The Case of Detroit, 45 Real Est. Econ. 237, 254 (2017) [hereinafter Hodge et al., Assessment Inequity] (concluding that assessment practices have created horizontal and vertical inequity); Timothy R. Hodge et al., Tax Base Erosion and Inequity from Michigan’s Assessment Growth Limit: The Case of Detroit, 43 Pub. Fin. Rev. 636, 648–55 (2015) (stating that Michigan’s assessment growth cap creates horizontal and vertical inequity); Mark Skidmore et al., Property Value Assessment Growth Limits and Redistribution of Property Tax Payments: Evidence from Michigan, 63 Nat’l Tax. J. 509, 515 & n.17 (2010) (finding that Michigan’s assessment growth cap allows homeowners to see a tax reduction over time).
. See U.S. Dep’t of Justice Civil Rights Div., Investigation of the Ferguson Police Department 12–15 (2015).
. See Mich. Legislature, Michigan Taxpayer’s Guide 1–2 (2016) (explaining the state assessment process).
. See Mich. Dep’t of Treasury, 2015 Ad Valorem Property Tax Report 2 (2016), http://www.michigan.gov/documents/treasury/2015_625_Ad_Valorem_Tax_Levy_Report_514334_7.pdf (showing Wayne County with the state’s highest average property tax rate, at $55.11 per $1,000 of assessed value).
. To understand the property tax foreclosure process in Wayne County, see Real Property Tax Forfeiture and Foreclosures, Mich. Taxes, http://www.michigan.gov/taxes/0,4676,7-238-43535_
55601—,00.html (last visited Jan. 19, 2018). See also James Alm et al., Detroit Property Tax Delinquency: Social Contract in Crisis, 14 Pub. Fin. & Mgmt. 280, 280–81 (2014) (concluding that properties with certain characteristics are more likely to be tax delinquent); Joshua M. Akers, Making Markets: Think Tank Legislation and Private Property in Detroit, 34 Urb. Geography 1070, 1070–93 (2013) (analyzing Detroit’s tax foreclosure crisis and the legislative process leading to it); Margaret Dewar et al., Disinvesting in the City: The Role of Tax Foreclosure in Detroit, 51 Urb. Aff. Rev. 587, 607 (2015) [hereinafter Dewar et al., Disinvesting]; Margaret E. Dewar, Selling Tax-Reverted Land: Lessons from Cleveland and Detroit, 72 J. Am. Plan. Ass’n 167, 169–71 (2006) [hereinafter Dewar, Lessons] (comparing Cleveland’s land-bank system for disposing of abandoned land with Detroit’s method); Ellen Kirtner, Interrupting the Blight Cycle: Managing the Future of Properties in Tax Foreclosure Sales Through Pre- and Post-Sale Interventions, 66 Case W. Res. L. Rev. 1083, 1097–1100 (2016) (offering legal suggestions for local governments to put foreclosed properties to productive use).
. Detroit, Loveland, https://makeloveland.com/us/mi/wayne/detroit#b=neighborhoods (last visited Jan. 19, 2018); Alex Alsup, A Recent History of Tax Foreclosure, Loveland (Nov. 9, 2015), https://makeloveland.com/blog/a-recent-history-of-tax-foreclosure. See also Archival Tax Foreclosures in Detroit, 2002–2013, Data Driven Detroit, http://d3-d3.opendata.arcgis.com/datasets/ 9438afd734d348a694c42a28c4103731_0 (last visited Jan. 19, 2018).
. These numbers were calculated by dividing the number of tax-foreclosed properties listed in foreclosure sales in 2015 by each region’s 2010 census population and multiplying by 100,000. New York City had a 2010 population of 8,175,133; San Francisco, 805,704; Los Angeles County, 9,818,605; Erie County, 919,040; and St. Louis County, 998,954. Community Facts, U.S. Census Bureau: Am. Fact Finder, https://factfinder.census.gov/faces/nav/jsf/pages/community_facts.xhtml (last visited Jan. 19, 2018). In New York City, 4,228 property tax liens were sold in 2015. Number of Properties on City’s 90-Day Lien Sales List I s Falling, Real Deal (Mar. 16, 2016, 10:32 A.M.), https://therealdeal.com/2016/03/10/number-of-properties-on-citys-90-day-lien-sales-list-down-from-last-year. In San Francisco, 389 tax foreclosed properties were auctioned in 2015. City & Cty. of S.F., Public Auction Sales of Tax-Defaulted Property (2015), http://sftreasurer.org/sites/default/ files/San%20Francisco%202015%20Tax%20Auction%20Post-Sale%20Report.pdf. In Los Angeles County, 781 tax foreclosed properties were auctioned in 2015. Cty. of L.A. Treasurer & Tax Collector Secured Prop. Div., 2015A Follow-up Online Auction (2015), https://ttc.lacounty.gov/proptax/docs/2015AInternetSoldParcelsFinallist.pdf; Cty. of L.A. Treasurer & Tax Collector Secured Prop. Div., 2015A Public Auction (2015), https://ttc.lacounty.gov/
proptax/docs/2015APublicSoldParcelsFinallist.pdf; Cty. of L.A. Treasurer & Tax Collector Secured Prop. Div., 2015B Online Auction (2015), https://ttc.lacounty.gov/proptax/docs/
2015BSoldParcelsFinallist.pdf. In Erie County, 569 properties went to the 2015 tax foreclosure auction. Auction & Foreclosure Information, Real Prop. Tax Services, https://web.archive.org/web/
20150816075239/http://www2.erie.gov/ecrpts/index.php?q=auction-foreclosure-information (last visited Jan. 19, 2018). In St. Louis, 1,964 properties were listed in 2015 tax sales. St. Louis Cty. Dep’t of Revenue, 8/24/15 1st 2nd Sale (2015), https://web.archive.org/web/20170116011612/
. See Bernadette Atuahene, Takings as a Sociolegal Concept: An Interdisciplinary Examination of Involuntary Property Loss, 12 Ann. Rev. L. & Soc. Sci. 171, 172 (2016); Christopher E. Herbert et al., Is Homeownership Still an Effective Means of Building Wealth for Low-Income and Minority Households? (Was it Ever?) 2, 4, 27 (Harvard Univ. Joint Ctr. for Hous. Studies, Working Paper No. HBTL-06, 2013), http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/hbtl-06.pdf (finding that home ownership continues to contribute significantly to household wealth and reporting that homeownership accounted for 22% of average wealth among homeowners in 2010).
. Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 957 (1982) (“[T]he relationship between property and personhood . . . has commonly been both ignored and taken for granted in legal thought. The premise underlying the personhood perspective is that to achieve proper self-development—to be a person—an individual needs some control over resources in the external environment. The necessary assurances of control take the form of property rights.”).
. See Joseph William Singer, Property and Social Relations: From Title to Entitlement, in Property and Values: Striking an Equitable Balance of Public and Private Interests 3, 13 (Charles Geisler & Gail Daneker eds., 2000) (“Property law helps to structure and shape the contours of social relationships. Choices of property rules ineluctably entail choices about the quality and character of human relationships and myriad choices about the kind of society we will collectively create.”).
. Through in-depth interviews with people who lost their homes and entire communities as a result of urban renewal during the 1950s and 1960s, Mindy Fullilove—a board-certified psychiatrist and public health professor at Columbia University—found that these displaced populations suffered from what she calls “root shock,” “the traumatic stress reaction to the destruction of all or part of one’s emotional ecosystem.” Mindy Thompson Fullilove, Root Shock: How Tearing Up City Neighborhoods Hurts America, and What We Can Do About It 11 (2004).
. See Charles A. Reich, The New Property, 73 Yale L.J. 733, 771, 787 (1964) (“[P]roperty performs the function of maintaining independence, dignity and pluralism in society by creating zones within which the majority has to yield to the owner. Whim, caprice, irrationality and ‘antisocial’ activities are given the protection of law; the owner may do what all or most of his neighbors decry. The Bill of Rights also serves this function, but while the Bill of Rights comes into play only at extraordinary moments of conflict or crisis, property affords day-to-day protection in the ordinary affairs of life.”).
. William M. Doerner & Keith R. Ihlanfeldt, An Empirical Analysis of the Property Tax Appeals Process, 10 J. Prop. Tax Assessment & Admin. 5, 16–17, 26 (2014) (discussing the fact that richer property holders have disproportionately more success with appeals than poorer and minority populations.); William M. Doerner & Keith R. Ihlanfeldt, The Role of Representative Agents in the Property Tax Appeals Process, 68 Nat’l Tax J. 59, 60–61, 89 (2015) [hereinafter Doerner & Ihlanfeldt, Representative Agents] (discussing the central role that unregulated appeals experts play, their focus on more affluent homeowners, and the resulting effects on existing disparities in property tax burdens).
. See generally Plaintiffs’ Expert Report, Morningside Cmty. Org. v. Sabree, No. 16-008807-CH (Mich. 3d Cir. Ct. 2016).
. Complaint at 2–3, Morningside Cmty. Org., No. 16-008807-CH; Race and Hispanic or Latino Origin 2010, supra Table 1 note g. In a follow-up paper, Bernadette Atuahene will test whether the assessors in Wayne County’s majority-white jurisdictions are illegally assessing residents to the same extent as the assessors in the county’s majority-African-American jurisdictions.
. Complaint at 46, Morningside Cmty. Org., No. 16-008807-CH.
. See 42 U.S.C. §§ 3601–3619 (2012). See generally Bernadette Atuahene, Assessing Racial Discrimination: Property Tax Assessments and the Fair Housing Act, 112 Nw. L. Rev. (forthcoming 2018).
. Plaintiffs sued both the City of Detroit and Wayne County. Litigation against Detroit is ongoing. But, the lower courts dismissed the litigation against Wayne County because they claimed that the case should have been brought before the Michigan Tax Tribunal. Plaintiffs have filed an interlocutor appeal to the Michigan Supreme Court. See Plaintiffs’ Application to File for Leave to Appeal, Morningside Cmty. Org v. Sabree, No. 156707 (Mich. Nov. 1, 2017).
. See Kenneth K. Baar, Property Tax Assessment Discrimination Against Low-Income Neighborhoods, 13 Urb. Law. 333, 338–56 (1981) (providing an overview of discriminatory property assessments); Harris, supra note 2, at 4 (finding that “residents of majority-minority neighborhoods are assessed at higher effective rates than residents of majority-white neighborhoods”); William S. Hendon, Discrimination Against Negro Homeowners in Property Tax Assessment, 27 Am. J. Econ. & Soc. 125, 125–32 (1968) (concluding that property assessments are higher for black homeowners than for white homeowners). See generally Andrew W. Kahrl, The Power to Destroy: Discriminatory Property Assessments and the Struggle for Tax Justice in Mississippi, 82 J. Southern Hist. 579 (2016) (discussing the history of discriminatory tax assessments in the American South through the late nineteenth and early twentieth centuries).
. Kahrl, supra note 26, at 585, 587–89 (“In 1916 the average assessment on white-owned farmland in Virginia, for example, was 33.1 percent of its market value; for black-owned land, it was 45.3 percent of market value.”).
. See Lee Harris, Assessing Discrimination: The Influence of Race in Residential Property Tax Assessments, 20 J. Land Use & Envtl. L. 1, 3–4 (2004).
. In January 2017, the City of Detroit completed a long overdue citywide re-assessment of all residential properties. Nevertheless, our analysis shows that 90 percent or more of properties valued less than $18,500 were still assessed in violation of the Michigan Constitution. See Bernadette Atuahene, Detroit’s Homeowners Deserve Better, Detroit News (Jan. 31, 2017), http://detne.ws/2jUcLgU.
. Mich. Const. art. IX, § 3.
. Id. (“For taxes levied in 1995 and each year thereafter, the legislature shall provide that the taxable value of each parcel of property adjusted for additions and losses, shall not increase each year by more than the increase in the immediately preceding year in the general price level, as defined in section 33 of this article, or 5 percent, whichever is less until ownership of the parcel of property is transferred. When ownership of the parcel of property is transferred as defined by law, the parcel shall be assessed at the applicable proportion of current true cash value.”).
. Mich. Const. art. IX, §§ 26–31. See also Kevin C. Kennedy, The First Twenty Years of the Headlee Amendment, 76 U. Det. Mercy L. Rev. 1031, 1031–32 (1999) (evaluating the Headlee Amendment’s four core provisions: (1) that state, property, and other local taxes could not increase beyond the guidelines set out in the Amendment without voter approval; (2) that the state could not require new expenditures by local governments without providing financing; (3) that the state could not reduce the proportion of state spending used to assist local governments; and (4) that the state could not shift the tax burden to local governments).
. Mich. Comp. Laws § 211.27(a)(1) (2017).
. Id. § 211.27.
. See Meadowlanes Ltd. Dividend Hous. Ass’n v. City of Holland, 473 N.W.2d 636, 642 n.17 (Mich. 1991); C.A.F. Inv. Co. v. Mich. State Tax Comm’n, 221 N.W.2d 588, 592 (Mich. 1974). See also Great Lakes Div. of Nat’l Steel Corp. v. City of Ecorse, 576 N.W.2d 667, 672 (Mich. Ct. App. 1998) (“True cash value is synonymous with fair market value.”); Samonek v. Norvall Twp., 527 N.W.2d 24, 26 (Mich. Ct. App. 1994); Jones & Laughlin Steel Corp. v. City of Warren, 483 N.W.2d 416, 419 (Mich. Ct. App. 1992).
. See Meadowlanes, 473 N.W.2d at 642; Cty. of Washtenaw v. State Tax Comm’n, 373 N.W.2d 697, 705 (Mich. 1985); Antisdale v. City of Galesburg, 362 N.W.2d 632, 636–37 (Mich. 1984); President Inn Props., LLC v. City of Grand Rapids, 806 N.W.2d 342, 347 (Mich. Ct. App. 2011); Great Lakes Div., 576 N.W.2d at 678; Samonek, 527 N.W.2d at 26–27; Jones & Laughlin, 483 N.W.2d at 419; Teledyne Cont’l Motors v. Muskegon Twp., 378 N.W.2d 590, 593 (Mich. Ct. App. 1985); Northwood Apartments v. City of Royal Oak, 295 N.W.2d 639, 642–43 (Mich. Ct. App. 1980); Safran Printing Co. v. City of Detroit, 276 N.W.2d 602, 603 (Mich. Ct. App. 1979); Consumers Power Co. v. Big Prairie Twp., 265 N.W.2d 182, 188 (Mich. Ct. App. 1978).
. Antisdale, 362 N.W.2d at 636.
. C.A.F. Inv., 221 N.W.2d at 592 n.2.
. Meadowlanes, 473 N.W.2d at 642; Antisdale, 362 N.W.2d at 636–37 (citations omitted) (“Generally, there presently are three methods of valuation which are acceptable to the Michigan Tax Tribunal and the courts. They are the cost-less-depreciation approach, the capitalization-of-income approach, and the market approach.”); Great Lakes Div., 576 N.W.2d at 673; Samonek, 527 N.W.2d at 26; Jones & Laughlin, 483 N.W.2d at 419; Wolverine Tower Assocs. v. City of Ann Arbor, 293 N.W.2d 669, 671 (Mich. Ct. App. 1980).
. Meadowlanes, 473 N.W.2d at 643. See also Jones & Laughlin, 483 N.W.2d at 419.
. Int’l Assoc. of Assessing Officers, Standard on Mass Appraisal of Real Property 9 (2013).
. See Meadowlanes, 473 N.W.2d at 642, 651. See also Mich. Comp. Laws § 211.27(1) (2017); Great Lakes Div., 576 N.W.2d at 674, 678–79.
. Antisdale, 362 N.W.2d at 638 (“The most obvious deficiency in using the sales price of a piece of property as conclusive evidence of its value is that the ultimate sales price of the property, as a result of many factors, personal to the parties or otherwise, might not be its ‘usual’ price.”). See also Cleveland-Cliffs Iron Co. v. Republic Twp., 163 N.W. 90, 93 (Mich. 1917); Great Lakes Div., 576 N.W.2d at 679; Samonek, 527 N.W.2d at 26.
. Antisdale, 362 N.W.2d at 638 (“The market approach to value has the capacity to cure this deficiency because evidence of the sales prices of a number of comparable properties, if sufficiently similar, supports the conclusion that factors extrinsic to the properties have not entered into the value placed on the properties by the parties.”).
. Mich. Comp. Laws § 211.27(1); Antisdale, 362 N.W.2d at 637; Jones & Laughlin, 483 N.W.2d at 419 (“The market approach is the only valuation method that directly reflects the balance of supply and demand for property in marketplace trading.”); Teledyne Cont’l Motors v. Muskegon Twp., 378 N.W.2d 590, 593. See also Olson v. United States, 292 U.S. 246, 257 (1934) (citation omitted) (“[T]he market value must be estimated. In respect of each item of property that value may be deemed to be the sum which, considering all the circumstances, could have been obtained for it; that is, the amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy. In making that estimate there should be taken into account all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.”).
. Mich. Comp. Laws § 211.27(1) (“As used in this act, ‘true cash value’ means the usual selling price at the place where the property to which the term is applied is at the time of assessment, being the price that could be obtained for the property at private sale, and not at auction sale except as otherwise provided in this section, or at forced sale. The usual selling price may include sales at public auction held by a nongovernmental agency or person if those sales have become a common method of acquisition in the jurisdiction for the class of property being valued.”); Samonek, 527 N.W.2d at 27.
. See Jones & Laughlin, 483 N.W.2d at 419 (“[E]vidence of the price at which an item of property actually sold is most certainly relevant evidence of its value at an earlier time . . . .”).
. See La. Const. art. VII, § 18B (“The classifications of property subject to ad valorem taxation and the percentage of fair market value applicable to each classification for the purpose of determining assessed valuation are as follows: 1. Land 10%; 2. Improvements for residential purposes 10%; 3. Electric cooperative properties, excluding land 15%; 4. Public service properties; excluding land 25%; 5. Other property 15%.”); Miss. Const. art. IV, § 112 (“The assessed value of property shall be a percentage of its true value, which shall be known as its assessment ratio. The assessment ratio on each class of property as defined herein shall be uniform throughout the state upon the same class of property, provided that the assessment ratio of any one (1) class of property shall not be more than three (3) times the assessment ratio on any other class of property. For purposes of assessment for ad valorem taxes, taxable property shall be . . . assessed at a percentage of its true value as follows: Class I. Single-family, owner-occupied, residential real property, at ten percent (10%) of true value; Class II. All other real property, except for real property included in Class I or IV, at fifteen percent (15%) of true value; Class III. Personal property, except for motor vehicles and for personal property included in Class IV, at fifteen percent (15%) of true value; Class IV. Public utility property, which is property owned or used by public service corporations required by general laws to be appraised and assessed by the state or the county, excluding railroad and airline property and motor vehicles, at thirty percent (30%) of true value . . . .”); N.M. Const. art. VIII, § 1A (“Except as provided in Subsection B of this section, taxes levied upon tangible property shall be in proportion to the value thereof, and taxes shall be equal and uniform upon subjects of taxation of the same class. Different methods may be provided by law to determine value of different kinds of property, but the percentage of value against which tax rates are assessed shall not exceed thirty-three and one-third percent.”); Okla. Const. art. X, § 8 (“Real property shall not be assessed for ad valorem taxation at a value less than eleven percent (11%) nor greater than thirteen and one-half percent (13.5%) of its fair cash value for the highest and best use for which such property was actually used . . . .”); Or. Const. art. XI, § 11(1) (“For the tax year beginning July 1, 1997, each unit of property in this state shall have a maximum assessed value for ad valorem property tax purposes that does not exceed the property’s real market value for the tax year beginning July 1, 1995, reduced by 10 percent.”); Pa. Const. art. VIII, § 1 (“All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.”); Tenn. Const. art. II, § 28 (“Real property shall be classified into four (4) subclassifications and assessed as follows: (a) Public Utility Property, to be assessed at fifty-five (55%) percent of its value; (b) Industrial and Commercial Property, to be assessed at forty (40%) percent of its value; (c) Residential Property, to be assessed at twenty-five (25%) percent of its value, provided that residential property containing two (2) or more rental units is hereby defined as industrial and commercial property; and (d) Farm Property, to be assessed at twenty-five (25%) percent of its value.”); Utah Const. art. XIII, § 2 (“[A]ll tangible property in the State that is not exempt under the laws of the United States or under this Constitution shall be: (a) assessed at a uniform and equal rate in proportion to its fair market value, to be ascertained as provided by law . . . .”).
. James K. Pollock, Making Michigan’s New Constitution, 1961–1962, at 49 (1962).
. Mich. Const. art. IX, § 3.
. Mich. Const. of 1908, art. X, § 7 (“All assessments hereafter authorized shall be on property at its cash value.”). According to a preparatory report, “[t]his provision was carried over from Section 12 of Article XIV of the Constitution of 1850.” Raleigh Barlowe, Constitutional Convention Preparatory Comm’n, Taxation and Fiscal Policy in the Michigan Constitution 5 (1961).
. Letter from John B. Swainson, Governor of Mich., to Stephen S. Nisbit, President, Mich. Constitutional Convention (Jan. 31, 1962), in State of Mich., Journal of the Constitutional Convention, No. 70, at 442, 442 (1962) (“It was the unanimous finding of the Committee that an unhealthy lack of uniformity in property taxation exists in Michigan and the primary basis for this condition is the wide variation of assessments. . . . [I]t is impossible under these conditions to assure an industry seeking to settle in this state that it will be treated equitably in the matter of property taxes. The training, technique, and skill of the assessor are so varied in this state that in some instances it has been a deterrent to new industry. Dr. Harvey E. Brazer, of the University of Michigan, an eminent authority in this field, has stated that a study of a typical Michigan county revealed that some properties were assessed at less than 2% of market value, and others were assessed as high as 175% of their sales price. In one of our large metropolitan counties we have witnessed the practice of assessing inventories at 80% of book value, machinery and equipment at 100% of depreciated value, and real property assessed at 50% of current value.”).
. The 50 percent limit was introduced at the convention by the Committee on Finance and Taxation on January 31, 1962. Committee Proposal No. 51, State of Mich., Journal of the Constitutional Convention, No. 69, at 404, 404 (1962).
. Id. at 405.
. Id. at 404 (“The Legislature shall provide by law a uniform rule governing the general ad valorem taxation of real property and tangible personal property. The Legislature shall provide by law for the determination of true cash value of such property and shall specify the proportion of true cash value at which such property shall be uniformly assessed, which shall not, after January 1, 1966, exceed 50 per cent, and shall provide by law for a system of equalization of assessments.”).
. Id. at 405.
. Minority Report on Committee Proposal No. 51, State of Mich., Journal of the Constitutional Convention, No. 73, at 523, 523 (1962).
. Id. at 522–23.
. Id. at 523.
. On February 8, 1962, the convention as a whole voted to send the provision to the Committee on Style and Drafting. Delegate Chard Austin unsuccessfully proposed to remove the 50 percent language on that day: “Amend page 1, line 13, after ‘assessed’ by striking out the comma and ‘which shall not, after January 1, 1966, exceed 50 per cent.’” Amendment No. 2, State of Mich., Journal of the Constitutional Convention, No. 75, at 557, 557 (1962).
. Lincoln Inst. of Land Policy & Minn. Ctr. for Fiscal Excellence, 50-State Property Tax Comparison Study for Taxes Paid in 2016, at 2, 18 fig.2 (2017), https://www.lincolninst.edu/sites/default/files/pubfiles/50-state-property-tax-comparison-for-2016-full.pdf.
. See, e.g., Gary Sands et al., Implementing Tax Abatements in Michigan: A Study of Best Practices, 20 Econ. Dev. Q. 44, 46–48 (2006); Gary Sands & Mark Skidmore, Making Ends Meet: Options for Property Tax Reform in Detroit, 36 J. Urb. Aff. 682, 682–83, 691–98 (2013) (offering reform options for current property tax policies that do not raise sufficient revenues for the City of Detroit); Michael Simoni, Tuning up the Motor City: The Viability of Restructuring Detroit’s Oppressive Property Tax System Within the Boundaries of Michigan’s Constitution, 51 Wayne L. Rev. 1309, 1320–23 (2005) (proposing a new reading of Proposal A, a ballot initiative to cap the maximum assessment). See generally Samuel J. McKim III, Is Michigan’s Ad Valorem Property Tax Becoming Obsolete?, 77 U. Det. Mercy L. Rev. 655 (2000); Timothy R. Hodge et al., The Land Value Gradient in a (Nearly) Collapsed Urban Real Estate Market (Lincoln Inst. of Land Policy, Working Paper No. WP15TH1, 2015) (arguing that peripheral neighborhoods are important to the property tax base).
. See id. Even when examining the same years as Hodge et al., however, we do not expect our numbers to be identical because Hodge et al. transform their collected assessed values by multiplying each value by two. Therefore, they expected their ratios to equal 1 while we expect ours to equal 0.5. See Hodge et al., Assessment Inequity, supra note 5, at 245 n.11.
. The PRD for Hodge et al.’s full sample was 2.68, exceeding the International Association of Assessing Officers’ (“IAAO”) upper limit of 1.03 and indicating regressivity. The COD was 109.55, again exceeding the IAAO’s acceptable range of 5 to 15 and indicating very low uniformity. Each quintile displayed horizontal inequity with mean values greater than 0.5, as well as regressivity and vertical inequity as lower value properties were more over-assessed (on average) than higher value properties. Hodge et al., Assessment Inequity, supra note 5, at 247 n.13. See also infra note 85 and accompanying text.
. Id at 48–49 & figs.3.9 & 3.10. The study does not include any of the IAAO recommended statistics such as PRD and COD.
. After initial studies from Hodge et al. and the media attention their work received, the State Tax Commission intervened in 2013 and issued a sample of reassessments in Detroit. See Christine MacDonald, Detroit’s Property Tax System Plagued by Mistakes, Waste, Detroit News, Feb. 22, 2013, at A1; Christine MacDonald, Michigan’s Tax Board to Investigate Whether Detroit is Overtaxing Property Owners, Detroit News, Apr. 8, 2013, at A1. Shortly after these articles went to print, the City of Detroit announced it would reassess all property. The reassessments were completed in 2017. Christine Ferretti, Property Taxes Going down for Over Half of Detroiters, Detroit News (Jan. 23, 2017, 11:05 A.M.), http://detne.ws/2kjSFKb (“The Duggan administration unveiled the proposed 2017 property assessments on the heels of the first parcel-by-parcel reappraisal of the city’s nearly 255,000 residential properties in 60 years.”).
. Matt Helms, Detroiters to See Property Assessment up to 20% Lower, Detroit Free Press (Jan. 28, 2015, 11:39 A.M.), https://www.freep.com/story/news/local/michigan/detroit/2015/01/28/
detroit-property-tax-assessments-reduced/22464209; Christine MacDonald & Christine Ferretti, Detroit Assessments to Fall 5–20 Percent, Detroit News (Jan. 28, 2015, 12:38 A.M.), http://detne.ws/2b4hcyz (“Detroit Mayor Mike Duggan announced Wednesday that residential property assessment citywide will decline 5 to 20 percent, the second consecutive year he’s cut taxes. The change is in addition to last year’s assessment reductions of up to 20 percent.”).
. The IAAO is a nonprofit, educational, and research association that is comprised of government assessment officials and others interested in the administration of the property tax. The IAAO’s main role is to promote standardized practices for assessing property and monitoring assessment performance. About Home, IAAO, http://www.iaao.org/wcm/About/wcm/About_Us_ Content/About_Home.aspx (last visited Jan. 21, 2018).
. See Int’l Ass’n of Assessing Officers, Standard on Ratio Study 7 (2013) [hereinafter IAAO].
. The mean is calculated by adding all assessment ratios together and dividing by the total number of ratios. The median is the middle ratio in an uneven number of ratios ordered by magnitude, or the average of the two central ratios in an even number of ordered ratios. The median is less affected by extreme outliers than the mean. Id. at 13.
. Mich. Const. art. IX, § 3.
. We recognize other IAAO-recommended measures for analyzing assessments exist, including price-related bias, weighted mean, median absolute deviation, and regression analysis. See IAAO, supra note 80, at 12–14. However, we have presented the traditional assessment performance statistics highlighted in the IAAO’s publication, id., and used in other papers analyzing assessment ratios. See, e.g., Hodge et al, Assessment Inequity, supra note 5, at 241; Krupa, supra note 2, at 565–69; Daniel P. McMillen, Assessment Regressivity: A Tale of Two Illinois Counties, Land Lines, January 2011, at 10–12.
. As outlined in the IAAO’s publication for analyzing assessment accuracy, the COD is calculated as follows: “1. subtract the median from each ratio; 2. take the absolute value of the calculated differences; 3. sum the absolute differences; 4. divide by the number of ratios to obtain the average absolute deviation; 5. divide by the median; and 6. multiply by 100.” IAAO, supra note 80, at 13 (emphasis omitted).
. Id. at 17 tbl.1-3.
. Id. at 14–15.